TMI Blog2015 (10) TMI 542X X X X Extracts X X X X X X X X Extracts X X X X ..... vi Saraf” (2006 (8) TMI 527 - SUPREME COURT OF INDIA) as held having so participated and obtained an adverse order, now it is not open to him to turn around and contend that in the absence of the report of the CIT under s. 245D(1), the order non-suiting the petitioner for settlement is a procedural irregularity and liable to be set aside. The same is hit by the principle of acquiescence. Also as as against the impugned proceedings, the petitioner is having efficacious remedy of appeal under Section 246A of the Act before the Commissioner of Income Tax (Appeals) and without exhausting the same, the petitioner has approached this Court and hence, the present writ petitions are not maintainable - Decided against assessee. - Writ Petition Nos.3354 & 3355 of 2015 And M.P.Nos.1 & 1 of 2015 - - - Dated:- 4-8-2015 - Mr. S.VAIDYANATHAN, J. For The Petitioner : M/s.Dr.Anitha Sumanth For The Respondents : Mr.Pramod Kumar Chopda, Mr.Rajkumar Jabak ORDER Aggrieved over the Notices of demand issued by the respondent under Section 156 of the Income Tax Act, 1961 (in short, the Act ), in and by which, after completing the reassessment for the years 2008-09 and 2009-2010 r ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e-opening of the assessment under Section 147 of the Act after obtaining the approval of the Commissioner of the Income Tax on 6.3.2014 and a notice, dated 10.3.2014 under Section 148 of the Act was issued. 5. Likewise, for the assessment year 2009-10 also, the claim of the petitioner towards depreciation at ₹ 56,32,24,463/- on Vendor network and dealer network was proposed to be withdrawn by resorting to re-opening of the assessment under Section dated 147 of the Act and a notice, dated 5.2.2014 under Section 148 of the Act was issued. 6. These proceedings were questioned in these writ petitions. 7. Ms.Anitha Sumanth, learned counsel appearing for the petitioner has made the following contentions, viz., i) that there is a violation of procedure for re-opening of assessment since no written reasons for reopening of assessment were furnished to the petitioner; ii) that there is no failure on the part of the petitioner to disclose fully and truly all material facts for the relevant assessment years in respect of depreciation on vendor and dealer network as well as the existence of goodwill; iii) that there is no tangible material for the respondent to form a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... CIT (2000)241 ITR 672 (Mad) wherein, it has been held as under: Mere escape of income is insufficient to justify the initiation of action after the expiry of four years from the end of the assessment year. Such escapement must be by reason of the failure on the part of the assessee either to file a return referred to in the proviso or to truly and fully disclose the material facts necessary for the assessment. Unless, the condition in the proviso is satisfied, the Assessing Officer does not acquire jurisdiction to initiate any proceeding under Section 147 of the Act after the expiry of four years from the end of the assessment year. Thus, in cases where the initiation of the proceedings is beyond the period of four years from the end of the assessment year, the Assessing Officer must necessarily record not only his reasonable belief that income has escaped assessment but also the default or failure committed by the assessee. Failure to do so would vitiate the notice and the entire proceedings. If the Assessing Officer chooses to entertain the belief that the assessment has been made in the background of the assessee s failure to disclose truly and fully all material facts, i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ill. For the Assessment year 2009-10 notice u/s. 148 along with reasons for reopening both dated 05.02.2014 was sent. In response to the same, the petitiioner filed a letter dated 28.02.2014 stating that, return filed on 30.09.2009 is to be taken as a return in response to notice u/s. 148. Since, the return has to be filed electronically, the petitioner was directed to file the return of income electronically under notice u/s. 142(1) dated 06.08.2014. In response to the same, the petitioner filed the return of income electronically on 30.08.2014. Thereafter notice u/s. 143 (2) dated 10.09.2014 was issued. The Petitioner s authorized representative as well as the AGM Finance, appeared before the Respondent and the case was discussed. The Petitioner was directed to submit the details in respect of issue of allowance of depreciation on dealer network vendor network and Goodwill. It is further stated that the petitioner vide letter dated 07.11.2014 made separate submission for each of the Assessment years in pursuant to the above notices on the claim of depreciation on dealer network vendor network and Goodwill, being the basis of reopening, thus even after knowing the reasons for ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... impugned proceedings, the petitioner is having efficacious remedy of appeal under Section 246A of the Act before the Commissioner of Income Tax (Appeals) and without exhausting the same, the petitioner has approached this Court and hence, I am of the view that the present writ petitions are not maintainable. In this context, it is worthwhile to refer the decision reported in CIT Vs- Chhabil Dass Agarwal reported in (2014) 1 SCC 603, wherein, the Hon ble Supreme Court has held that when a statutory forum is created by law for redressal of grievances, writ petition should not be entertained ignoring said statutory dispensation. In para 19, 20 and 21, the Hon ble Supreme Court has held as under: 19. Thus, while it can be said that this Court has recognized some exceptions to the rule of alternative remedy, i.e., where the statutory authority has not acted in accordance with the provisions of the enactment in question, or in defiance of the fundamental principles of judicial procedure, or has resorted to invoke the provisions which are repealed, or when an order has been passed in total violation of the principles of natural justice, the proposition laid down in Thansingh Nathma ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
