TMI Blog2012 (2) TMI 388X X X X Extracts X X X X X X X X Extracts X X X X ..... ed:- 16-2-2012 - MR. JUSTICE SANJIV KHANNA, MR. JUSTICE R.V. EASWAR, JJ. For Appellant: Mr. Ajay Vohra and Ms. Kavita Jha, Advs. For Respondent: Ms. Rashmi Chopra, sr. standing counsel SANJIV KHANNA, J: (ORAL) Admit. Rule DB. 2. We have heard counsels for the parties and proceed to pronounce our decision. 3. The petitioner herein is a company and for the assessment year 2003-04, a regular assessment order dated 20.10.2005 after scrutiny under Section 143(3) of the Income Tax Act, 1961 ( Act , for short), was passed. 4. Subsequently, respondent No.1- the Deputy Commissioner of Income Tax, Circle 7(1) issued notice under Section 148 of the Act dated 8.3.2010. In response to the said notice, the petitioner filed computation of income under protest vide letter dated 15.4.2010 and requested respondent No.1 to furnish reasons recorded prior to the issue of notice under Section 148. 5. The respondent No.1, vide letter dated 6.10.2010, furnished the reasons to believe to the petitioner. The reasons recorded are as under: The provision for gratuity amounting to Rs.16,59,906/- claimed in the profit and loss account and offered it for tax while computin ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ssession/knowedge of the respondent No.1, subsequent to the original assessment. It was stated that this was a case of change of opinion and further that the requirements of the first proviso to Section 147 of the Act were not satisfied. The assessee had made full and true disclosure of material facts at the time of original assessment. With regard to issue No.1, i.e. provision for gratuity, reference was made to the specific material available to the Assessing Officer in original assessment. With regard to settlement, the material available with the Assessing Officer in the original proceedings, including a legal opinion obtained and furnished by the petitioner, was referred to. Similarly, with regard to provision for diminution in value of investment in mutual funds, the documents available with the Assessing Officer at the time of original assessment proceedings were specifically adverted to. 7. These objections filed on 26.10.2010, have been disposed of vide order dated 2.11.2010. This order is impugned before us in the present writ petition. The entire order for the sake of completeness and convenience is being reproduced below: Sub: Assessment proceedings u/s 147 for K ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... er filed an amendment application. The amendment application was allowed and the petitioner was permitted to challenge and question the reassessment order purportedly dated 19.11.2010 passed by the respondent no.1. 11. We may note the peculiar facts and circumstances of this case and why we have permitted the petitioner to challenge the reassessment order dated 19.11.2010 in this writ petition. These are: a. The order disposing of objections in terms of GKN Driveshafts (India) Ltd. (supra) was passed on 2.11.2010. The said order is a non-speaking and non-reasoned order. b. The petitioner had filed this writ petition on 24.11.2010 challenging the order dated 2.11.2010. Advance copy of the writ petition was served on the Revenue. c. In GKN Driveshafts (India) Ltd. (supra) it was held by the Supreme Court as under : We see no justifiable reason to interfere with the order under challenge. However, we clarify that when a notice under section 148 of the Income-tax Act is issued, the proper course of action for the noticee is to file a return and if he so desires, to seek reasons for issuing notices. The Assessing Officer is bound to furnish reasons within a reasonable time. O ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e reopening of assessment. 12. No doubt, the petitioner assessee had filed an appeal against the reassessment order as it was mandated and required to be filed within the period of limitation. They have, however, withdrawn the said appeal. Looking into the factual background of the present case, we feel that the plea of alternative remedy raised by the Revenue should be and ought to be rejected. Defence of alternative remedy in the present case will result in miscarriage of justice and cause prejudice to the petitioner. Once we have quashed the order dated 2nd November, 2010, for the reasons stated above, the petitioner should not be denied relief on the ground that the respondent No. 1 had proceeded in great haste and hurry to pass the reassessment order. In the present case, therefore, quashing of order dated 2nd November, 2010 would necessarily entail and as a sequitor mandate quashing of the reassessment order dated 19th November, 2010. Existence of alternative remedy, therefore, cannot be regarded as equally efficacious and adequate. The petitioner has not tried to circumvent the statutory right to appeal or alternative remedy. Challenge to reopening of assessments has bee ..... X X X X Extracts X X X X X X X X Extracts X X X X
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