IN THE HIGH COURT OF JUDICATURE AT BOMBAY
\nO.O.C.J.
\nWRIT PETITION NO. 284 OF 2019
\nCenveo Publisher Services India Ltd. …Petitioner.
\nvs
\nUnion of India & Ors. …Respondents
\n…..
\nMr Bharat Raichandani a\/w Ms Pragya Koolwal I\/b UBR Legal for the
\nPetitioner.
\nMr N.C.Mohanty for Respondent Nos.2 and 3.
\n…..
\nCORAM : AKIL KURESHI &
\nB.P.COLABAWALLA, JJ.
\nFEBRUARY 01, 2019.
\nP.C. :<\/p>\n
The Petitioner has challenged the notice of reopening of
\nthe assessment dated 31.3.2018, as at annexure \u201cA\u201d to the petition
\nand further an order dated 28.12.2018 passed by Respondent No.3-
\nAssessing Officer rejecting the Petitioner’s objections to the notice of
\nreopening. By the time this petition was filed, the Assessing Officer
\nhad also passed the order of reassessment. The petitioner has,
\ntherefore, challenged such an order of reassessment dated 29th
\nDecember, 2018.<\/p>\n
2 This challenge arises in the following background. The
\nPetitioner is a company registered under the Companies Act. For the
\nAssessment Year 2011-12 the Petitioner had filed the return of
\nincome declaring the total income of Rs.1.65 crores (rounded off).
\nSubsequently the Petitioner had revised the return declaring the
\nrevised income of Rs.2.64 Criores (rounded off). The return of the
\npetitioner was taken in scrutiny by the Assessing Officer who passed
\nthe order under Section 143(3) of the Income Tax Act, 1961 (\u201cthe
\nAct\u201d for short) on 3.3.2015 accepting the Petitioner’s revised income.<\/p>\n
3 To reopen such assessment, the Assessing Officer issued
\nthe impugned notice. He had recorded the reasons for issuing the
\nnotice. In response to the notice of reopening of the assessment, the
\nPetitioner filed return in April 2018 stating that the revised return
\nmay be treated as the return in response to the notice. In such a
\ncommunication the Petitioner had also asked the Assessing Officer to
\nsupply the reasons recorded for reopening the assessment. Such
\nreasons are supplied by the Assessing Officer to the Petitioner on
\n14.9.2018. The Petitioner thereupon filed Writ Petition No. 3534 of
\n2018 challenging the notice of reopening the assessment. This was,
\nat the request of the Petitioner was taken up for hearing by the Court
\non 13th December, 2018. This Court noticed that the Petitioner had
\napproached the Court without raising objections before the Assessing
\n Officer. This was clearly in breach of the mechanism devised by the
\nSupreme Court in the case of GKN Driveshafts (India) Ltd. Vs.
\nIncome Tax Officer reported in 259 ITR 19 (SC). The petition was
\ndisposed of in following terms.<\/p>\n
\u201cLearned counsel for the petitioner sought permission to
\nwithdraw the petition leaving all contentions open to be
\nraised before the Assessing Officer either in form of
\nobjections to the notice of re-opening or during the course
\nof re-assessment opposing the validity of the reassessment proceedings themselves. Permission as
\nprayed for granted. Needless to clarify that all other
\ncontentions on merits are also kept open. Petition
\ndisposed of accordingly.\u201d<\/p>\n
4 The Petitioner thereupon raised the objections before the
\nAssessing Officer to the notice of reopening of the assessment on
\n14.12.2018. Such objections were disposed of by the Assessing Officer
\non 28.12.2018. Since the last date for framing the assessment was
\nfast approaching and the assessment would get time barred on 31st
\nDecember, 2018, the Assessing Officer passed the order of assessment
\non 28.12.2018.<\/p>\n
5 In such circumstances, the Petitioner has once again
\napproached the Court challenging very notice of reopening of the
\nassessment and also including the challenge to the order of reassessment as consequential to the main challenge to reopening of the
\nassessment.<\/p>\n
6 At the outset we had called upon counsel for the Petitioner
\nto satisfy us why the petitioner should not be relegated to the
\nstatutory appellate remedy. In response to the same, counsel for the
\npetitioner vehemently contended that the notice of reopening of the
\nassessment is based on the reasons which are not sustainable. He
\nsubmitted that the impugned notice has been issued beyond the
\nperiod of four years from the end of relevant assessment year without
\nthere being any failure on the part of the assessee to disclose truly all
\nmaterial facts. In that view of the matter, the counsel contended, that
\nthe Assessing Officer would have no jurisdiction to reopen the
\nassessment. Such being the facts the Petitioner should not be
\nrelegated to the alternative remedy. He further submitted that the
\nAssessing Officer consumed considerably long time in providing the
\nreasons for reopening the assessment. It is, therefore, that the
\nPetitioner could not challenge the notice earlier. The Petitioner
\nshould not be penalized for delay on the part of the Assessing Officer
\nin supplying the reasons.<\/p>\n
7 The learned counsel relied on following decisions;<\/p>\n
(1) The Division Bench of this Court in the case of Aroni
\nCommercials Ltd. Vs. The Dy. Commissioner of
\nIncome Tax-2(1) reported in 362 ITR 403 (Bom) in
\nwhich the Court examined the challenge of the Petitioner
\nto the very notice of reopening of the assessment though
\nassessment order was already passed.<\/p>\n
(2) In case of Crompton Greaves Ltd. Vs Assistant
\nCommissioner of Income Tax reported in 275 CTR
\n(Bom) 49 in which the Division Bench of this Court once
\nagain entertained the challenge of the Petitioner to the
\nnotice of reopening of the assessment, even though by
\nthe time the petition was filed, the order of the
\nassessment was passed.<\/p>\n
8 In facts in the present case we are not inclined to
\nentertain this petition and we would relegate the petition to the
\nstatutory remedy. This is so for the following reasons.<\/p>\n
(i) We may recall the petitioner after being supplied the
\nreasons for reopening of the assessment by the Assessing Officer on
\n14.9.2018, approached this Court by filing the Writ Petition in
\nNovember, 2018, without first raising the objections before the
\nAssessing Officer. This was in clear breach of the procedure laid down
\nby Supreme Court in the case of GKN Driveshafts (supra). It is true
\nthat in a given case the mechanism provided by the Supreme Court in
\nthe case of GKN Driveshafts may be open to flexibility. However, the
\npetitioner – assessee cannot without any reason or explanation, at his
\nwill choose to file the Writ Petition directly before the Court without
\nfollowing the procedure set out in GKN Driveshafts (supra) i.e.
\nwithout first raising the objections before the Assessing Officer.<\/p>\n
Allowing the assessee to do so without any explanation at all would
\ndismantle such mechanism. It was because of this that the Court had
\npreviously refused to entertain his petition directly filed without
\nraising objections before the Assessing Officer. The Petitioner
\nthereupon withdrew the petition on 13th December, 2018 and filed the
\nobjections before the Assessing Officer.<\/p>\n
(2) The fact that in this case the petitioner raised objections
\npromptly after withdrawing the petition from this Court, would not in
\nany manner dilute the fact that it was on the ground of the
\npetitioner’s conduct that the Assessing Officer was left with little time
\nto dispose of his objections and thereafter complete the assessment
\nbefore it becomes time barred. We may record that this Court in the
\ncase of Asian Paints Ltd. Vs. Dy. Comm. Of Income Tax & Ors.
\nreported in 296 ITR 90 Bom has provided that if the Assessing
\nOfficer does not accept the objections of the assessee, he shall not
\nproceed further in the matter within a period of four weeks from the
\ndate of receipt of said order of objections. The petitioner by its
\nconduct destroyed this formula provided by the Court in the case of
\nAsian Paints (supra), making it impossible for the assessing officer
\nto wait for four weeks after disposal of objections without running the
\nrisk of allowing the assessment to be time barred.<\/p>\n
(3) The Supreme Court in the case of Commissioner of
\nIncome Tax Vs Chhabil Dass Agarwal reported in 357 ITR 357
\n(SC) has held that, ordinarily Writ Petition should not be entertained
\nwhen an alternative statutory remedy is available. As correctly
\npointed out by the petitioner, it does not completely oust the writ
\njurisdiction of the High Court under Article 226 of the Constitution of
\nIndia. Nevertheless the facts may emerge in a given case, where
\ndespite availability of the jurisdiction, the Court may refuse to
\nexercise the same. <\/p>\n
In a case where the order of the assessment is
\npassed, the jurisdiction of the Assessing Officer to pass such an order
\non the basis of validity of reopening of the assessment would be one
\npart of the challenge. Another part would involve the challenge to the
\nassessment made by the Assessing Officer and would necessarily
\nentail examination of facts on record which the High Court would be
\nloath to do as a writ court. <\/p>\n
Ordinarily, therefore, the Court would
\ninsist that in such a situation the assessee should take appellate
\nroute. Otherwise, the petitioner would argue the jurisdictional
\nquestion in the High Court and if he fails, would opt to challenge the
\norder on merits before the Appellate Authority, which would be most
\nconvenient.<\/p>\n
9 Before closing we may record that in a case where the
\nPetitioner is already before the Court and the order of the assessment
\nwas passed thereafter may stand on entirely different footing.
\nFurther in the present case by the self imposed restriction, we have
\nrefused to entertain the petition since by not following the procedure
\nset out by the Supreme Court in the case of GKN Driveshafts (India)
\nLtd.(supra), the petitioner has brought about a situation where the
\nAssessing Officer was left with short time to dispose of the objections
\nand complete the assessment. This element is clearly absent in the
\njudgments cited before us by the counsel for the petitioner.
\n10 In these circumstances, this petition is not entertained,
\nleaving it open to the petitioner to challenge the assessment order
\nbefore the Appellate Authority. If in the process, there has been some
\ndelay, we are sure that the Appellate Authority shall consider the
\nsame in view of the fact that the Petitioner was bona fide pursuing its
\nremedies before this Court. All contentions of the Petitioner are kept
\nopen.
\n(B.P.COLABAWALLA, J.) (AKIL KURESHI, J. )<\/p>\n","protected":false},"excerpt":{"rendered":"
Asian Paints Ltd. Vs. Dy. Comm. Of Income Tax & Ors. reported in 296 ITR 90 Bom has provided that if the Assessing Officer does not accept the objections of the assessee, he shall not proceed further in the matter within a period of four weeks from the date of receipt of said order of objections. The petitioner by its conduct destroyed this formula provided by the Court in the case of Asian Paints (supra), making it impossible for the assessing officer to wait for four weeks after disposal of objections without running the risk of allowing the assessment to be time barred<\/p>\n