The Gauhati High Court directed to file application under section 249(4) of Income Tax Act, 1961 as tax dues mentioned under income tax return ( ITR ) were paid. It was observed that as per section 249(4) where an appeal is filed before the Appellate Authority it shall not be entertained unless the assessee has paid the tax due on the income return by him wherein return is filed and where no returns are filed the assessee shall pay an amount equal to the amount of tax payable by him.
Vizovolie Nyekha , the assessee filed the writ petition against the Assessment Order dated 31.03.2022, whereby for the Assessment Year 2015-2016, proceedings initiated under Section 147 pursuant to issuance of notice under Section 148 of the Income Tax Act the assessment was completed by the Assessment Officer in respect of the petitioner and a total amount of Rs. 5,28,13,970/- (Rupees Five Crore Twenty-eight Lakhs Thirteen Thousand Nine Hundred and Seventy) including tax, interest and penalty and arrears were found to be chargeable against the writ petitioner and a Demand Notice to that effect was raised.
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The petitioner challenged the Assessment Order filed an appeal before the Commissioner’s Office and the counsel for the petitioner states that the appeal is presently pending but no effective order has been passed thereon. Under such circumstances, the writ petition has been filed praying for setting aside the Assessment Order dated 31.03.2022 as well as the consequential Demand Notice.
Senior Standing Counsel for the Income Tax Department, Mr. S. Chetia, submitted that since there is already an appeal which is preferred against the Assessment Order and the same is presently pending, the writ petition ought not to have been filed by the petitioner as he had already taken recourse to the statutory alternative remedy prescribed. Under such circumstances it is submitted that during the currency of the appeal where no order has been passed, writ petition is not maintainable and the same should, therefore, be dismissed as it is devoid of any merit.
The Department has also filed the affidavit and submitted that the appeal is pending and during the pendency of the appeal the writ petition ought not be entertained. Counsel for the petitioner on the other hand also urged before the Court that the petitioner is an indigenous person belonging to a declared Scheduled Tribe of the State of Nagaland, namely Chakhesang (Naga) Tribe. He submitted that the petitioner is a permanent resident of Chesezu Village who is a registered Electrical Contractor Class-I with registration No. CEI/CON/54, registered under the Nagaland Electrical Licensing Board, Electrical Inspectorate, Nagaland, Kohima.
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It was submitted that the petitioner is exempted from payment of Income Tax under Section 10(26) of the Income Tax Act. Learned counsel, therefore, submits that the assessment in the first place ought not to have been proceeded against the petitioner as he is a member of a Scheduled Tribe belonging to the State of Nagaland and which fact is not disputed by the respondents. He, therefore, submits that under such circumstances he has challenged the Assessment Order dated 31.03.2022, whereby the Assessing Officer completed assessment under Section 148 of the Income Tax Act read with Section 144B.
TheJustice Soumitra Saikia viewed that “the fact urged that the only reason for approaching the Court is to evade payment of the statutory deposit which is prescribed under the Act while preferring the appeal. Such attempt may be made by the petitioner cannot be permitted, more particularly in the manner sought to be done by taking recourse to filing a writ petition before the Court during the pendency of the statutory appeal already filed by the petitioner.”
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The court held that any application that may be filed by the petitioner will necessarily be required to be considered appropriately in terms of the proviso to Section 249(4) of the Income Tax Act and pass appropriate orders. The contentions raised by the writ petitioner before the Court can also be raised before the Appellate Authority which is presently in seisin of the matter. The petitioner is granted liberty to file necessary applications before the Commissioner, Income Tax Appeal, raising all grounds to assail the Assessment Order dated 31.03.2022 before the Commissioner (Appeals).
The petitioner is permitted 2 (two) weeks’ time to file all necessary papers as may be advised before the Commissioner (Appeals) in support of its contentions assailing the Assessment Order dated 31.03.2022. Ms. Neiteo Koza, counsel for the petitioner and Mr. S. Chetia, Senior Standing Counsel appeared for the Income Tax Department.
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