Universal Enterprises Limited vs Income Tax Officer
2023 Latest Caselaw 2245 Cal/2

OD-10

                   IN THE HIGH COURT AT CALCUTTA
                    CIVIL APPELLATE JURISDICTION
                            ORIGINAL SIDE

                          APOT/208/2023
                         IA NO: GA/2/2023
                  UNIVERSAL ENTERPRISES LIMITED
                                 VS
               INCOME TAX OFFICER, WARD 6(2) & ORS.



BEFORE :
THE HON'BLE THE CHIEF JUSTICE T.S. SIVAGNANAM
             And
THE HON'BLE JUSTICE HIRANMAY BHATTACHARYYA
Date : 23rd August, 2023


                                                            Appearance :
                                                    Ms. Swapna Das, Adv.
                                                           ...for appellant

                                                Mr. Om Narayan Rai, Adv.
                                                Mr. Prithu Dudhoria, Adv.
                                                         ...for respondent

The Court : - This intra-Court appeal by the writ petitioners is

directed against the order passed by the learned Single Bench in WPO

No. 1022 of 2023, dated May 17, 2023. The writ petition was allowed

holding that the appellant being aggrieved by an order of assessment

passed by the Assessing Officer has to necessarily file an appeal.

Ms. Swapna Das, learned Advocate appearing for the appellant,

would vehemently contend that the reopening of the assessment is

hopelessly time-barred and this aspect of the matter has not been

specifically dealt with by the Learned Writ Court in the impugned order

and therefore aggrieved by the same the appellant has preferred this

appeal.

We have heard Mr. Om Narayan Rai, learned standing Counsel

appearing with Mr. Prithu Dudhoria, learned Advocate for the

respondents.

The Assessing Officer issued show-cause notice dated May 26,

2022 under Section 148A(b) of the Income Tax Act, 1961 (the Act)

proposing to reopen the assessment for the relevant assessment year

namely, A.Y. 2015-16. The reasons based on which the assessment was

proposed to be reopened was mentioned in the show-cause notice. The

assessee submitted their reply/objection pointing that the re-assessment

proceedings is time-barred. Apart from that the assessee had also set out

certain averments on the merits of the matter, which could be seen from

paragraph 4 of the reply dated June 9, 2022. The Assessing Officer

passed order under Section 148A(d), dated 23rd July, 2022 and has dealt

with the issue regarding the plea of limitation by stating that in terms of

the provisions of taxation and other laws amendment Act, the period of

limitation for issuance of the reopening notice stood extended to 30th

June, 2021 and therefore, the reopening proceedings is not barred by

time. Apart from that, other findings were also recorded by the Assessing

Officer. Thereafter, a show-cause notice was issued on April 26, 2023

proposing certain variations. For such show-cause notice, the assessee

sent a reply not on merits but with a request to keep the proceedings in

abeyance since the writ petition was filed by the appellant. However, the

assessment order has been passed by the Assessing Officer dated May

26, 2023.

In the light of the stand taken by the Assessing Officer with regard

to the plea of limitation by referring to the decision of the Hon'ble

Supreme Court in the case of Union of India & Ors. vs. Ashish Agarwal,

correctness of the same is required to be decided before the appropriate

appellate authority and not by a writ court as the question of limitation

arisen in the instant case is a mixed question of fact and law.

Therefore, it is appropriate for the appellant to file an appeal as

against the assessment order dated May 26, 2023. In the appeal that the

appellant may file, the appellant would be at liberty to raise the plea of

limitation, which will be considered by the appellate authority.

In the light of the above, we are not inclined to interfere with the

order passed by the Learned Single Bench and we direct the appellant to

file a statutory appeal before the Commissioner of Income Tax (Appeals)

and if such appeal is filed within 30 days from the date of receipt of the

server copy of this order and judgment, the appeal shall not be rejected

on the ground of limitation but shall be entertained by the said appellate

authority.

The appellant will be entitled to raise the plea that the entire

reopening proceedings is time-barred apart from raising other plea on the

merits of the matter and the appellate authority shall decide the plea of

limitation as fast among the several issues which will fall for

consideration.

With the above observation, the appeal is dismissed.

The stay application being IA NO: GA/2/2023 is also dismissed.

(T.S. SIVAGNANAM) CHIEF JUSTICE

(HIRANMAY BHATTACHARYYA, J.)

SN/SD.

AR(CR)