A Single Bench of the Calcutta High Court dismissed writ petition as appeal was filed against the penalty order instead of assessment order.
By the writ petition the petitioner, M/s. Poddar Real Estates Pvt Ltd has made prayer for cancellation of the order dated 2nd December, 2016 passed under Section 144 read with Section 147 of the Income Tax Act, 1961 and subsequent penalty notice issued under Section 271(i) (C) of the Income Tax Act, 1961 and the penalty order dated 23rd June, 2017 relating to the assessment year 2009-2010.
What is noticeable in this writ petition is that the impugned assessment order was passed on 2nd December, 2016 and the impugned penalty order was passed on 23rd June, 2017 and the petitioner filed an appeal against the aforesaid impugned penalty order on 26th June, 2017 before the appellate authority which is the basis of the aforesaid impugned order.
Curious enough that the petitioner has filed the appeal against the impugned penalty order instead of first filing appeal against the impugned assessment order which is the basis of the penalty order. The petitioner takes the plea that it could not challenged the impugned assessment order since no copy of the same was served upon it. Petitioner further contends that against the assessment order it has made an application for providing the certified copy of the said assessment order including notices.
The petitioner itself has chosen to file appeal against the penalty order without making an application for certified copy of the impugned assessment order even after knowing from the penalty order that the same is based on that impugned assessment order.
Even at all it was not served upon him, it sat for two years and in March, 2019, it applied for certified copy of the impugned assessment order and in the end of the 2022 petitioner is raising this grievance of non consideration of its application for providing certified copy of the impugned assessment order which according to it is bad in law by contending that it was not served upon on it’s new address.
The Bench of Justice Md. Nizamuddin observed that “I am not inclined to interfere with the impugned penalty order since petitioner itself has chosen to file alternative remedy way of filing appeal which is still pending. “
“Secondly, I am also not inclined to interfere with the impugned assessment order which was passed on December, 2016 against which the petitioner itself has not filed an appeal by taking steps for obtaining certified copy of the same immediately and it applied for certified copy of impugned assessment order in March, 2019 and now in December, 2022 by filing this writ petition petitioner wants me to interfere with the aforesaid impugned order of 2nd December, 2016” the Court noted.
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