In a recent decision the Calcutta High Court observed that writ petition cannot be entertained when an assessment order passed is appealable.
The appellant, Euphoria Infotech India Pvt Ltd, had challenged the order passed under Section 147 read with Section 144/144B of the Income Tax Act, 1961. The Single Bench dismissed the writ petition on the ground that the impugned order in the writ petition is an appealable order.
Om Narayan Rai, Advocate for the respondent/revenue submitted that the assessment order was passed on 31st March, 2022 and the writ petition was filed during January 2023 and even at that point of time had a statutory appeal been filed by the assessee, it would have been time barred.
Avra Majumder, the Senior Advocate appearing for the appellant submitted that the appellant may be permitted to file statutory appeal before the Commissioner of Income Tax (Appeals).
A Division Bench of Justice TS Sivagnanam and Justice Hiranmay Bhattacharyya noted that “In any event, since the assessee had availed a remedy before this Court in which they were not successful, it would be appropriate to exclude the period during which the writ petition was pending till the server copy of this order is received by the appellant.”
The Court further added that in respect of the anterior period, this Court is conscious of the fact that it would be appropriate for the Court to extend the statutory period of limitation nevertheless the Court can take judicial notice of the fact that in several cases filed by the revenue there is inordinate delay and Court has exercised discretion in several matters and condoned the delay in appeals filed by the revenue.”
“Thus, considering the peculiar facts and circumstances of the case and also the submission of the leaned Senior Advocate for the appellant that the entire income has been added, we are of the view that the appellant can be granted reasonable time to prefer an appeal and such appeal can be directed to be disposed of on merits and in accordance with law without rejecting the same on the ground of limitation” the Court concluded.
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