Delhi High Court
M/S Ester Industries Ltd. vs Assistant Cit, New Delhi And Anr. on 24 May, 2022
$~A-11
* IN THE HIGH COURT OF DELHI AT NEW DELHI
+ W.P.(C) 7889/2022 & CM APPLs.24093-24094/2022
M/S ESTER INDUSTRIES LTD. ..... Petitioner
Through: Mr. R. Santhanam, Advocate with
Mr.Arjun Prasad Sinha, Advocate.
versus
ASSISTANT CIT, NEW DELHI AND ANR. ..... Respondents
Through: Mr.Zoheb Hossain, Sr.Standing
Counsel with Mr.Vipul Agrawal and
Mr.Parth Semwal, Jr.Standing
Counsel.
% Date of Decision: 24th May, 2022
CORAM:
HON'BLE MR. JUSTICE MANMOHAN
HON'BLE MS. JUSTICE MANMEET PRITAM SINGH ARORA
JUDGMENT
MANMOHAN, J (Oral):
1. Present writ petition has been filed challenging the Notice under
Section 148 of the Income Tax Act, 1961 ('the Act') dated 31st March, 2021,
Order under Section 147 read with Section 144B and the demand notice
issued under Section 156 of the Act dated 30th March, 2022.
2. Learned Counsel for the Petitioner states that the impugned order and
notice have been issued and passed illegally, mechanically and without
application of mind.
Signature Not Verified
Digitally Signed
By:KRISHNA BHOJ
Signing Date:25.05.2022
3. He states that the impugned Order has been passed without
considering the detailed reply submitted by the petitioner during the
assessment proceedings. He states that the short term capital loss of
Rs.35,11,525/- can only be carried forward for set off against short term
capital gain in subsequent years and, therefore, the question of disallowing
the loss so computed and reducing the same from the business loss of the
assessee entitled to be carried forward under Section 72 for set off in future
does not arise and the impugned order is liable to be quashed.
4. He also states that the respondents have committed grave error in
issuing the notice under old Section 148 without complying with the
mandatory requirements of the statute and thereafter converting the case as
falling under the new section 147/148 read with Section 148A when no
enquiry was conducted and no notice under Section 148A was issued and no
effective opportunity of hearing provided to the assessee.
5. He states that as against a returned loss of Rs.5,71,43,593/-, the
respondents have raised a tax demand of Rs.43,43,36,124/-.
6. Per contra, learned counsel for the respondent-revenue, who appears
on advance notice, states that the petitioner has already filed an appeal
challenging the impugned order. He further states that the petitioner has also
filed a rectification application which is pending consideration.
7. Having heard learned counsel for the parties and having perused the
paperbook, this Court finds that the Petitioner has not brought on record
anything to prove that the impugned notice issued shall be governed by the
amended procedure under Section 148A of the Act.
8. This Court is also of the view that Petitioner is basically challenging
the impugned order on merits. The Supreme Court in Commissioner of
Signature Not Verified
Digitally Signed
By:KRISHNA BHOJ
Signing Date:25.05.2022
Income Tax and Ors. Vs. Chhabil Das Agarwal, (2014) 1 SCC 603 has
held that as the Income Tax Act, 1961 provides complete machinery for
assessment/reassessment of tax, assessee is not permitted to abandon that
machinery and invoke jurisdiction of High Court under Article 226.
9. This Court is further of the view that the present case does not fall
under the exceptional grounds on which a writ petition is maintainable at the
interim stage in tax matters.
10. In view of the above, the present writ petition and applications are
dismissed with liberty to raise all contentions and submissions in the appeal
and rectification proceedings.
MANMOHAN, J
MANMEET PRITAM SINGH ARORA, J
MAY 24, 2022
TS
Signature Not Verified
Digitally Signed
By:KRISHNA BHOJ
Signing Date:25.05.2022
