Madras High Court
Shapoorji Pallonji Solar ... vs The Income Tax Officer on 29 March, 2023
2023:MHC:1796
W.P.Nos. 9142 & 9145 of 2023
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED: 29.03.2023
CORAM :
The HONOURABLE DR.JUSTICE ANITA SUMANTH
W.P.Nos.9142 & 9145 of 2023
and
W.M.P.Nos. 9281 & 9282 of 2023
Shapoorji Pallonji Solar Holdings Private Limited
Rep. By its Authorised Signatory, Mr.Viral Mehta
SP Centre, 41/44, Minoo Desai Marg,
Colaba, Mumbai 400 005. .. Petitioner
in both writ petitions
vs
1.The Income Tax Officer
Income Tax Department,
National Faceless Assessment Centre,
Ministry of Finance,
Room No.401, 2nd Floor, E-Ramp,
Jawaharlal Nehru Stadium,
Delhi – 110 003.
2.The Deputy Commissioner of Income Tax
Corporate Circle 3(1)
Ayakar Bhavan, Nungambakkam,
Chennai - 34. .. Respondents
in both writ petitions
Prayer in W.P.No.9142 of 2023: Petition filed under Article 226 of
the Constitution of India praying to issue a writ of certiorari calling
for the records of demand notice for AY 2021 – 22 in DIN
ITBA/AST/156/2022-23/1048293085(1) dated 28.12.2022 issued
under Section 156 of the Income-Tax Act, 1961 on the file of the
first respondent and to quash the same as arbitrary and illegal.
Prayer in W.P.No.9145 of 2023: Petition filed under Article 226 of
the Constitution of India praying to issue a writ of certiorari calling
for the records of demand notice for AY 2021 – 22 in DIN
https://www.mhc.tn.gov.in/judis
W.P.Nos. 9142 & 9145 of 2023
ITBA/AST/143(3)/2022-23/1048293030 dated 28.12.2022 issued
under Section 143(3) read with Section 144B of the Income-Tax
Act, 1961 on the file of the first respondent and to quash the same
as arbitrary and illegal.
For Petitioner : Mr.Vijay Narayan,
Senior Counsel
for Mr.Rahul Unnikrishnan
(in both writ petitions)
For Respondents : Ms.S.Premalatha
Junior Standing Counsel
(in both writ petitions)
COMMON ORDER
The petitioner has challenged order of assessment dated
28.12.2022 passed in terms of the provisions of the Income-Tax
Act, 1961 (in short, 'Act'). Various grounds have been raised
challenging the impugned order, primary of which is the violation of
principles of natural justice.
2. Mr.Vijay Narayan, learned Senior Advocate appearing
for Mr.Rahul Unnikrishnan, learned counsel on record, would urge
the point that the order of assessment had travelled beyond the
scope of show-cause notice. While the order rejects the petitioner's
entitlement to carry-forward long term capital loss, such a proposal
does not form part of pre-assessment show-cause notices.
3. Normally this Court is inclined to treat violation of
https://www.mhc.tn.gov.in/judis
W.P.Nos. 9142 & 9145 of 2023
principles of natural justice, particularly of the nature as set out by
the petitioner hereinbefore, seriously, and there have been several
instances where this Court has intervened in the order of
assessment in question, directing de novo assessment, in line with
the principles of natural justice.
4. However, in the present case, the petitioner has
challenged the impugned order of assessment by way of statutory
appeal in January, 2023. Inter alia the petitioner has specifically
raised the ground now raised and argued in this writ petition. The
petitioner has approached the statutory authority with the full belief
that this is the appropriate avenue for remedy. Remedy under
Article 226 of the Constitution of the India constitutes an
extraordinary remedy but in this case, it has been resorted to only
as an afterthought. In such circumstances, I am not inclined to
consider the identical prayer now raised by way of writ petition.
5. The petitioner relies upon the judgment of the Hon'ble
Supreme Court in the case of Tin Box Company v Commissioner of
Income-Tax [2001] 249 ITR 216 (SC), decision of this Court in the
case of K.S.Shivji & Co., v Joint Commercial Tax Officer, Esplanade
Division, Madras 1965 SCC Online Mad 87, decision of Bombay High
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W.P.Nos. 9142 & 9145 of 2023
Court in the case of Irecti Services Private Limited v The Assistant
Commissioner of Income Tax, International Tax, Circle 2(1)(2)
[W.P.No.1439 of 2021 dated 25.10.2021] as well as decision of
Calcutta High Court in the case of Kantilal Somehand Shah and
Another v Collector of Customs & C.Ex., West Bengal and another
1982 (10) E.L.T. 902(Cal.).
6. They point out that in the cases cited above, the
respective petitioners had availed appellate remedy despite which
the Courts were inclined to intervene for violation of principles of
natural justice.
7. The Division Bench of this Court in the case K.S.Shivji
(supra) has, at paragraph 3, has reiterated the position that when a
statutory remedy is available to an assessee, he must first resort to
it and in a case where appeal remedy was availed, Courts are
normally reluctant to interfere with an order of assessment. The
Court has, also observed that there might be cases where the
aforesaid rule may not outweigh other considerations which may
compel interference. In that case they were of the view that such
interference was warranted.
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W.P.Nos. 9142 & 9145 of 2023
8. In the present case, the revenue impact of the
disallowance in the order of assessment is nil, though the assessee
is aggrieved by the fact that the entitlement to carry forward losses
has been rejected. That apart, the power of an appellate authority
under the Act is co-terminus with that of an Assessing Officer and
hence any lacunae in procedure can well be corrected even at that
stage. There are thus, in my considered view, no extraordinary
circumstances in the present case to persuade me to intervene in
the impugned order and I thus leave it to the petitioner to pursue
the statutory appeal that it has filed.
9. These writ petitions are dismissed. No costs. Connected
miscellaneous petitions are closed.
29.03.2023
Index:Yes
Neutral Citation:Yes
ssm
To
1.The Income Tax Officer
Income Tax Department,
National Faceless Assessment Centre,
Ministry of Finance, Room No.401, 2nd Floor, E-Ramp,
Jawaharlal Nehru Stadium, Delhi – 110 003.
2.The Deputy Commissioner of Income Tax
Corporate Circle 3(1)
Ayakar Bhavan, Nungambakkam,
Chennai - 34.
https://www.mhc.tn.gov.in/judis
W.P.Nos. 9142 & 9145 of 2023
DR. ANITA SUMANTH,J.
ssm
W.P.Nos.9142 & 9145 of 2023
29.03.2023
https://www.mhc.tn.gov.in/judis
