TaxTMI 
TaxTMI 
2022 (3) TMI 1406
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.... Standing Counsel ORDER By this writ petition, challenge is made to the assessment order dated 28.09.2021 for the Assessment Year 2015-16, without availing the remedy of appeal and therefore, to justify the maintainability of the writ petition, argument was raised in reference to the judgment of the Hon'ble Apex Court in the case of GKN Driveshafts (India) Ltd -Vs- ITO (259 ITR 19 (SC). 2. Learned counsel for the petitioner submitted that, writ petition challenging the assessment order is maintainable for the reason that after the notice under Section 148 of the Income Tax Act, 1961 (hereinafter referred to as -the Act-), the petitioner submitted the objections, however, without deciding the objections, the respondents have given a....
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....ghtly maintained by the petitioner and accordingly the prayer sought for is to set aside the order of assessment for the assessment year 2015-16. 5. Learned counsel for the Revenue has opposed the writ petition on facts as well as on the legal issue. It is submitted that, after a notice under Section 148 of the Act, the course of action, as held by the Apex Court in the case of GKN Driveshafts (India) Ltd -Vs- ITO (259 ITR 19 (SC) cited supra, has been followed. The petitioner had in fact submitted the objections to the notice under Section 148 and an order could not be passed immediately due to COVID-19 pandemic situation. However, a detailed order was passed on 24.09.2021 where the objections raised by the petitioner were dealt with. A....
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.... 9. The petitioner is a Government of Tamil Nadu Undertaking incorporated on 28.05.1983 under the Companies Act, 1956. It was involved in retail vending of alcoholic liquor and accordingly shops were opened across the State for the sale of liquor. During the assessment year 2014-15, the petitioner had paid VAT amount of Rs.11,491.97 Crores as per the Second Schedule to Tamil Nadu Value Added Tax Act 2006 and claimed as expenditure in the Profit and Loss Account and the same was accepted by the assessment order under Section 143(3) of the Act on 30.12.2016. It is thereupon the Principal Commissioner of Income Tax, Chennai issued a notice under Section 263 on 18.03.2016 to show cause as to why the assessment order passed under Section 143(....
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....ssessing officer to furnish the reasons recorded for reopening the assessment. 11. The second respondent / assessing officer furnished the reasons recorded for reopening of assessment along with the notice under Section 142(1) of the Act on 26.09.2020, where they proposed to disallow the amount of VAT towards expenditure in terms of Section 40(a)(iib) of the Income Tax Act, the petitioner filed detailed objections on 20.10.2020. In the meanwhile, the petitioner challenged the constitutional validity of Section 40(a)(iib) of the Income Tax Act, 1961 in W.P.No.6284 of 2020, which was dismissed by this Court by order dated 11.03.2020, against which the petitioner filed a Special Leave Petition before the Hon'ble Supreme Court in S.L.P.No.10....
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....der Section 148 of the Income Tax Act. Rather, a detailed order was passed and finding no substance in the objections, a show cause notice along with the draft assessment order was sent to the petitioner, which remains without reply by the petitioner and accordingly, before the expiry of the period for re-assessment, the assessment order was passed on 28.09.2021. 15. Thus, in view of the facts given above, we find that it is not such a case where a writ petition can be maintained directly challenging the assessment / reassessment order. The judgment of the Hon'ble Apex Court in GKN Driveshafts (India) Ltd -Vs- ITO (259 ITR 19 (SC) case has been applied. For ready reference, the relevant portion of the said judgment is extracted hereunder....
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....e under Section 148 of the Act, when an objection was submitted by the petitioner, no speaking order was passed on it, rather an assessment order was passed directly. The arguments have been raised without taking note of the fact that while sending the show cause notice and draft assessment order on 24.09.2021, the order on the objections was also sent, after dealing with the objections. When no response to the show cause notice along with the draft assessment order was received, the final assessment order was passed on 28.09.2021. 18. Accordingly, we do not find this as a fit case for maintaining a writ petition to challenge the assessment order. However, the petitioner can seek remedy by filing an appeal against the assessment order be....