TMI Blog2022 (3) TMI 1406X X X X Extracts X X X X X X X X Extracts X X X X ..... assessing officer is bound to dispose of the same by passing a speaking order. In the instant case, the allegation of the petitioner is that, pursuant to the notice under Section 148 of the Act, when an objection was submitted by the petitioner, no speaking order was passed on it, rather an assessment order was passed directly. The arguments have been raised without taking note of the fact that while sending the show cause notice and draft assessment order on 24.09.2021, the order on the objections was also sent, after dealing with the objections. When no response to the show cause notice along with the draft assessment order was received, the final assessment order was passed on 28.09.2021. Accordingly, we do not find this as a fit case for maintaining a writ petition to challenge the assessment order. However, the petitioner can seek remedy by filing an appeal against the assessment order because, we have not touched the merits of the issue. Rather, the present order is only with reference to the maintainability of the writ petition in reference to the notice under Section 148 of the Income Tax Act and the objections thereupon. Thus taking note of the peculiarity of the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... loyees Welfare Foundation reported in 418 ITR 427 (Mad) was also made, wherein it was held that when a notice under Section 148 of the Act is issued, the proper course of action for the noticee is to file a return and if the assessee so desires, to seek disclosure of reasons for issuing such notice. Further, it was held that the assessing officer has to furnish reasons within a reasonable time and on receipt of the objections, the assessing officer is bound to dispose of the same by passing a speaking order. 4. Since in the present matter, the objections raised by the petitioner pursuant to the show cause notice remained undecided, the assessment order becomes illegal on the face of it, thus the writ petition was rightly maintained by the petitioner and accordingly the prayer sought for is to set aside the order of assessment for the assessment year 2015-16. 5. Learned counsel for the Revenue has opposed the writ petition on facts as well as on the legal issue. It is submitted that, after a notice under Section 148 of the Act, the course of action, as held by the Apex Court in the case of GKN Driveshafts (India) Ltd -Vs- ITO (259 ITR 19 (SC) cited supra, has been followed. Th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... , Chennai issued a notice under Section 263 on 18.03.2016 to show cause as to why the assessment order passed under Section 143(3) of the Act on 30.12.2016 should not be treated as erroneous and prejudicial to the interest of the Revenue for the reason that the charge of VAT levied on the State Government undertaking by the State Government though comes within the provisions of Section 40(a)(iib) of the Act and hence shall not be allowed as deduction for the purpose of computation of income of such undertakings under the head -profits and gains of business or profession-. The petitioner challenged this show cause notice under Section 263 of the Act by maintaining a writ petition in W.P.No.8629 of 2019, where an interim order was passed. During the intervening period, the petitioner paid VAT amounting to Rs.12,889.53 Crores for the assessment year 2015-16 and claimed as expenditure in the Profit and Loss Account in the same manner as given in the previous assessment year 2014-15. The petitioner filed original return of income on 30.09.2016 declaring NIL income. The return of income was processed under Section 143(1) of the Act on 22.07.2017 resulting in a refund of Rs.2,76,320/-. It ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... with by the Revenue and it was pursuant to the same, the show cause notice along with draft assessment order was issued to the petitioner. Thus, it cannot be stated that the assessment order under challenge is without an order on the objections raised pursuant to the notice under Section 148 of the Income Tax Act. Rather, a detailed order was passed and finding no substance in the objections, a show cause notice along with the draft assessment order was sent to the petitioner, which remains without reply by the petitioner and accordingly, before the expiry of the period for re-assessment, the assessment order was passed on 28.09.2021. 15. Thus, in view of the facts given above, we find that it is not such a case where a writ petition can be maintained directly challenging the assessment / reassessment order. The judgment of the Hon ble Apex Court in GKN Driveshafts (India) Ltd -Vs- ITO (259 ITR 19 (SC) case has been applied. For ready reference, the relevant portion of the said judgment is extracted hereunder. “5. We see no justifiable reason to interfere with the order under challenge. However, we clarify that when a notice under Section 148 of the Act is issued, the p ..... X X X X Extracts X X X X X X X X Extracts X X X X
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