Nikunj Drolia vs Income Tax Officer
2023 Latest Caselaw 4975 Cal

11.08.2023
Item No.11
gd/ssd
                              MAT/1111/2023
                            IA NO: CAN/1/2023
                              NIKUNJ DROLIA
                                    VS
                      INCOME TAX OFFICER, WARD-30(1),
                            KOLKATA AND ORS.

                   Ms. Akshara Shukla
                               ..for the Appellant.

                   Ms. Smita Das De
                               ..for the Respondent.

1. This intra court appeal is directed against

the order passed by the learned Single Bench dated 5th

June, 2023 in WPA 9158 of 2023.

2. The appellant had challenged the reopening

of the assessment for the assessment year 2017 under

the provisions of the Income Tax Act, 1961.

3. The learned Single Bench had taken note of

the facts and circumstances and in particular that an

assessment order has already been passed under

Section 147 of the Act and declined to entertain the

writ petition.

4. We have elaborately heard the learned

advocate for the appellant who strenuously contends

that the substantial objection which was raised by the

assessee in his reply dated 02.03.2022 in response with

the notice issued under Section 148A(b) of the Act was

not considered and none of the facts were dealt with by

the assessing officer while passing the order dated

23.07.2022 under Section 148A(b) of the Act.

Therefore, it is submitted that the matter should be

remanded back to the assessing officer to consider the

reply given by the assessee in a proper perspective.

5. As could be seen from the reply to the show

cause notice the assessee has not only mentioned

about the absence of evidence being provided, the

assessee has also furnished information to state that

the proposal to reopen the assessment was incorrect

assessment of facts and this aspect has been dealt with

by the assessing officer and more particularly, while

passing the assessment order under Section 147 of the

Act dated 29.05.2023. Thus, the matter has travelled

to the stage of assessment order and necessarily the

assessee has to establish his case by placing facts

before the appellate authority and at this juncture the

question of interfering with the order passed under

Section 148A(d) of the Act would not arise.

6. For the above reason, the order passed in

the writ petition is confirmed and the appeal is

dismissed.

7. However, we make it clear that the

dismissal of the appeal and the writ petition will not

preclude the appellant from raising all grounds in the

statutory appeal to be filed against the assessment

order dated 29.05.2023 in which the appellant would

be entitled to contest that the reopening of the

assessment itself is bad in law. All such contentions

shall be decided by the appellate authority

uninfluenced by any observation made by the learned

writ court or by this court in this judgment and order.

(T. S. SIVAGNANAM) CHIEF JUSTICE

(HIRANMAY BHATTACHARYYA, J.)