Maheshchandra Chimanlal Raval v. Income-tax Officer-Ward 2(2)(3)
[Citation -2017-LL-0425-118]

Citation 2017-LL-0425-118
Appellant Name Maheshchandra Chimanlal Raval
Respondent Name Income-tax Officer-Ward 2(2)(3)
Court HIGH COURT OF GUJARAT AT AHMEDABAD
Relevant Act Income-tax
Date of Order 25/04/2017
Judgment View Judgment
Keyword Tags reopening of assessment • cost of acquisition • departmental valuer • sale consideration • agricultural land • fair market value • valuation officer • value of land • indexed cost • capital gain
Bot Summary: 6.4 Now so far as contention on behalf of the assessee that the Assessing Officer had passed the assessment order under Section 147 of the Act in haste is concerned, it is submitted that as the assessment was getting time barred on 31st December 2016, the Assessing Officer had no option but to finalize re- assessment proceedings, and therefore, re-assessment proceedings came to be completed on 26th December 2016 on the basis of material available on the record and in absence of any clarification/ explanation submitted by the assessee. In rejoinder, Shri S.N Soparkar, learned counsel for the petitioner-assessee has vehemently submitted that the reference to the assessment order of Shri Ashwin Chimanlal Raval is ill founded because in that case, the concerned assessee had not given any reply to the show cause notice for making addition on the ground of difference in the value as on 1st April 1981. At the outset, it is required to be noted that in the present case, action of the Assessing Officer in reopening the assessment for A.Y 2012-2013 and also the subsequent order under Section 147 of the Act dated 26th December 2016 is under challenge. Having heard learned advocates appearing on behalf of the respective parties, perusing the material on the record and even the reasons recorded to reopen the assessment for A.Y 2012-2013, it appears that considering the difference in the fair market value Page 19 of 24 HC-NIC Page 19 of 24 Created On Mon Jul 17 14:32:24 IST 2017 C/SCA/21635/2016 CAV JUDGMENT determined by registered valuer of the assessee and the D.V.O, Surat, it has been found that the value estimated by the registered valuer of the assessee as on 1st April 1981 was on the higher side and in variance with the fair market value which has resulted into escapement of income from assessment. Considering the affidavit-in-reply and material on the record so also the order of assessment, it appears that in the case of brother of the assessee and the co-owner of the very land ie. In the case of Shri Ashwinkumar Chimanlal Raval, the Assessing Officer had determined/estimated, and/or considered the fair market value as on 1st April 1981 at Rs. 10,19,250/ and consequently, the assessment order has been passed in the case of co-owner of the very land in question estimating the fair market value at RS. 10,19,250/ as on 1st April 1981 and accordingly, the long term capital gain has been worked out. Under the circumstances, now when the order of assessment is already passed, in the aforesaid peculiar facts of the case, we refuse to entertain the present petition challenging the order of assessment under Section 147 of the Act and relegate the petitioner to prefer the appeal before the CIT A against the order of assessment under Section 147 of the Act and keeping all the contentions/defence which would be available to the parties; more particularly available to the petitioner-assessee.


C/SCA/21635/2016 CAV JUDGMENT IN HIGH COURT OF GUJARAT AT AHMEDABAD SPECIAL CIVIL APPLICATION No. 21635 of 2016 FOR APPROVAL AND SIGNATURE: HONOURABLE Mr. JUSTICE M.R. SHAH and HONOURABLE Mr. JUSTICE B.N. KARIA 1 Whether Reporters of Local Papers may be allowed to see judgment ? 2 To be referred to Reporter or not ? 3 Whether their Lordships wish to see fair copy of judgment ? 4 Whether this case involves substantial question of law as to interpretation of Constitution of India or any order made thereunder? MAHESHCHANDRA CHIMANLAL RAVAL (HUF)....Petitioner(s) Versus INCOME TAX OFFICER-WARD 2(2)(3)....Respondent(s) Appearance : Mr SN SOPARKAR, Sr Advocate with Mr B S SOPARKAR, Advocate for Petitioner Mr SUDHIR M MEHTA, Advocate for Respondent(s) No. 1 NOTICE SERVED BY DS for Respondent(s) No. 1 CORAM: HONOURABLE Mr. JUSTICE M.R. SHAH and HONOURABLE Mr. JUSTICE B.N. KARIA 25th April 2017 Page 1 of 24 HC-NIC Page 1 of 24 Created On Mon Jul 17 14:32:24 IST 2017 C/SCA/21635/2016 CAV JUDGMENT CAV JUDGMENT (PER : HONOURABLE Mr. JUSTICE M.R. SHAH) 1. Draft amendment is allowed. Amendment shall be carried out forthwith. 2. By way of this petition under Article 226 of Constitution of India, petitioner-assessee has prayed for issuance of appropriate writ, order and direction to quash and set-aside impugned Notice issued under Section 148 of Income-tax Act, 1961 [ Act for short] {Annexure }, by which, Assessing Officer has sought to reopen assessment for Assessment Year 2012-2013 on ground that income chargeable to tax for A.Y 2012-2013 has escaped assessment within meaning of Section 147 of I.T Act. 3. facts leading to present Special Civil Application in nutshell are as under : 3.1 That, petitioner-assessee filed return of income for A.Y 2012-2013 declaring total income at Rs. 8,42,070/= which came to be accepted by Assessing Officer. That thereafter, by impugned Notice Page 2 of 24 HC-NIC Page 2 of 24 Created On Mon Jul 17 14:32:24 IST 2017 C/SCA/21635/2016 CAV JUDGMENT dated 12th February 2016, assessment for A.Y 2012- 2013 is sought to be reopened. That, petitioner asked for reasons for reopening vide letter dated 25th February 2016. reasons came to be supplied after approximately nine months vide communication dated 23rd November 2016. reasons recorded to reopen assessment for A.Y 2012-2013 read as under : In this case, assessee has filed his return of income on 2nd July 2012 declaring total income at Rs. 8,42,070/=. On going through return of income, it is found that assessee has shown income of RS. 8,22,245/= under head of Long term capital gain. It is gathered from sale deed of land that Mahesh Chimanlal Raval, PAN : AACHM4020Q [having 1/3rd share] along with five co-owners have sold Agricultural land situated at revenue survey no. 21/A, Paiki 1, T.P No. 70, O.P No. 228, Village Amroli, District Surat for Rs. 6,25,00,000/=. Out of total consideration of sale, assessee has received Rs. 2,06,25,000/= being stake holder of 33.33%. However, on perusal of records, it was also seen that said land was ancestral land Page 3 of 24 HC-NIC Page 3 of 24 Created On Mon Jul 17 14:32:24 IST 2017 C/SCA/21635/2016 CAV JUDGMENT and fair market value of land as on 1st April 1981 was estimated at Rs. 77,44,375/= by registered valuer for calculation of long term capital gain. Accordingly, cost of acquisition for share of assessee in land arrive at RS. 25,22,644/= and after indexation long term capital gain of Rs. 8,22,645/= was shown by assessee at time of filing of return. On perusal of valuation report, it was noticed that value estimated by registered valuer as on 1st April 1981 was on higher side and in variance with its fair market value. fair market value of land as on 1st April 1981 as per valuation officer, Surat estimated at Rs. 10,19,250/= as on 1st April 1981. Accordingly, 1/3rd share of LTCG works out to Rs. 1,79,84,633/=. Difference of RS. 1,71,62,388/= [Rs. 1,79,84,633/= - Rs. 8,22,245/= shown as per ROI] has been escaped from assessment. In view of above mentioned facts, I have reason to believe that income of Rs. 1,71,62,388/= has been escaped from assessment for reasons of non compliance of provisions of I.T Act on part of assessee for A.Y 2012-2013 within meaning of Section 147 of I.T Act. Page 4 of 24 HC-NIC Page 4 of 24 Created On Mon Jul 17 14:32:24 IST 2017 C/SCA/21635/2016 CAV JUDGMENT Therefore, I am satisfied that it is fit case for reopening case under Section 147 of I.T Act. 3.2 That, petitioner immediately raised objection against reopening vide communication dated 29th November 2016. That, said objections came to be disposed of by Assessing Officer on 16th December 2016, which came to be received by assessee on 19th December 2016. Immediately, vide communication dated 21st December 2016, assessee requested not to proceed further with re-assessment proceedings and not to pass any order by submitting that petitioner proposes to challenge reopening of assessment and decision disposing of objections. However, without giving any sufficient opportunity/time to assessee to challenge reopening of assessment, immediately on 26th December 2016, Assessing Officer has passed re-assessment order/assessment order. At this stage, it is required to be noted that prior to order of Page 5 of 24 HC-NIC Page 5 of 24 Created On Mon Jul 17 14:32:24 IST 2017 C/SCA/21635/2016 CAV JUDGMENT assessment, assessee already had preferred writ petition on 22nd December 2016 and by ad interim order dated 22nd December 2016, Assessing Officer was permitted to proceed further with reassessment proceedings, however, he was restrained from finalizing reassessing proceedings. However, it appears that Assessing Officer passed order of assessment in haste on 26th December 2016. That, by way of draft amendment, petitioner has challenged re-assessment/assessment order dated 26th December 2016, as same has been passed after filing of present petition. 4. Feeling aggrieved and dissatisfied with reassessment proceedings and subsequent assessment order, petitioner has preferred present Special Civil Application under Article 226 of Constitution of India. 5. Shri S.N Soparkar, learned Senior Advocate has appeared on behalf of petitioner-assessee and Shri Sudhir Mehta, learned advocate has appeared on behalf Page 6 of 24 HC-NIC Page 6 of 24 Created On Mon Jul 17 14:32:24 IST 2017 C/SCA/21635/2016 CAV JUDGMENT of respondent-Revenue. 5.1 Shri SN Soparkar, learned counsel for assessee has vehemently submitted that reopening of assessment for A.Y 2012-2013 is absolutely bad in law and illegal, and therefore, deserves to be quashed and set-aside. It is further submitted by Shri Soparkar, learned counsel for petitioner that from reasons recorded to reopen assessment for A.Y 2012-2013, it appears that respondent had issued notice to make addition only on ground that fair market value as on 1st April 1981 of land sold by petitioner is valued by DVO on lower side compared to value determined by registered Valuer and this difference in fair market value has increased indexed cost of asset of petitioner leading to lesser capital gain, and hence, such indexed cost of asset needs to be reduced resulting into higher capital gain which needs to be added to income of assessee. It is submitted that aforesaid reason recorded to reopen assessment is Page 7 of 24 HC-NIC Page 7 of 24 Created On Mon Jul 17 14:32:24 IST 2017 C/SCA/21635/2016 CAV JUDGMENT ex facie bad, illegal and erroneous. It is submitted that no reopening of assessment is permissible/possible based solely on report of Valuation Officer. 5.2 It is further submitted that solely on basis of and/or solely relying upon report of DVO, reopening of assessment is not permissible in as much as, report of DVO can be said to be estimate and it cannot be used to draw inference that income has escaped assessment. It is submitted that as such there is no independent subjective satisfaction of Assessing Officer to form opinion that income chargeable to tax has escaped assessment; more particularly on ground stated in reasons recorded to reopen assessment. In support of his above submissions, Shri SN Soparkar, learned Sr. Advocate has relied upon decisions of Hon ble Supreme Court in case of ACIT v. Thariya Construction Company, [2010] 328 ITR 515 [SC] and in case of Principal Commissioner of Income-tax-2 vs. J.Upendra Page 8 of 24 HC-NIC Page 8 of 24 Created On Mon Jul 17 14:32:24 IST 2017 C/SCA/21635/2016 CAV JUDGMENT Construction (P) Limited, [2015] 377 ITR 383 [Gujarat]. Shri S.N Soparkar, learned counsel for assessee has also placed reliance upon decision of Division Bench of this Court in case of Aavkar Infrastructure Company v. Deputy Commissioner of Income-tax, Circle-9, reported in [2016] 67 Taxmann.com 39 [Gujarat]. 5.3 It is further submitted by Shri Soparkar, learned counsel for petitioner that in present case as such reference to DVO is possible only in circumstances where in opinion of respondent, value of asset is lesser reported and not over reported. It is further submitted by learned Senior Advocate that in present case, petitioner has adopted value determined by registered Valuation Officer, and as such, Assessing Officer has not pointed out any error in such report and merely proceeded on value arrived at by DVO. It is further submitted by Shri Soparkar, learned Sr. Advocate appearing for petitioner that as held by Page 9 of 24 HC-NIC Page 9 of 24 Created On Mon Jul 17 14:32:24 IST 2017 C/SCA/21635/2016 CAV JUDGMENT Division Bench of Bombay High Court in case of Commissioner of Income-tax v. Puja Prints, reported in [2014] 360 ITR 697 [Bombay], reference to DVO can be made only when value adopted by assessee is less than fair market value and if value of asset shown by assessee is much more than fair market value, reference to Valuation Officer could not be made. It is submitted that therefore also, when reference to DVO itself was not permissible, considering pre-amended Section 55A of Income-tax Act, Assessing Officer ought not to have reopened assessment, relying solely upon valuation of DVO and that too without application of independent mind. 5.4 It is further submitted by Shri Soparkar, learned counsel appearing on behalf of petitioner that in present case, even order of assessment has been passed in hot haste, without giving sufficient opportunity to petitioner assessee to challenge re-opening proceedings, immediately after Page 10 of 24 HC-NIC Page 10 of 24 Created On Mon Jul 17 14:32:24 IST 2017 C/SCA/21635/2016 CAV JUDGMENT objections raised by assessee were over-ruled by Assessing Officer. 5.5 It is submitted by Shri Soparkar, learned counsel for petitioner that Hon ble Supreme Court in case of GKN Driveshafts [India] Limited v. Income- tax Officer & Ors., reported in [2003] 259 ITR 19 had specifically directed that when notice under Section 148 of Act is issued and noticee files return and seeks reasons for issuance of notice, Assessing Officer is bound to furnish reasons within reasonable time. It is submitted that thereafter, Division Bench of this Court in case of Commissioner of Income-tax v. Gauranginiben S. Shodhan, reported in [2014] 367 ITR 238 [Gujarat] has reiterated view by holding that Assessing Officer shall supply reasons recorded by him within thirty days of filing of objection by assessee without waiting for assessee to demand such reasons. It is submitted that in present case, petitioner requested for furnishing reasons Page 11 of 24 HC-NIC Page 11 of 24 Created On Mon Jul 17 14:32:24 IST 2017 C/SCA/21635/2016 CAV JUDGMENT recorded by Assessing Officer as early as on 25th February 2016. However, respondent took undue time and supplied reasons on 23rd November 2016 ie., after delay of approximately 9 months. It is submitted that even thereafter also, despite earlier directions issued by Division Bench of this Court in case of Commissioner of Income-tax v. Gauranginiben S. Shodhan [Supra], after disposing of objections, no sufficient time was given to petitioner to challenge reopening of assessment/ re-assessment proceedings and order disposing of objections and in present case, in absolute haste, Assessing Officer had passed order under Section 147 of Act on 26th December 2016 ie., after present petition was filed challenging re- assessment proceedings. It is submitted that therefore, impugned assessment order under Section 147 of Act is absolutely bad in law and in breach of directions issued by this Court in case of Gauranginiben S. Shodhan [Supra], and therefore, once Page 12 of 24 HC-NIC Page 12 of 24 Created On Mon Jul 17 14:32:24 IST 2017 C/SCA/21635/2016 CAV JUDGMENT it is found that reopening of assessment is bad in law and illegal, order of assessment deserves to be quashed and set-aside. Making above submissions, it is requested to allow present petition. 6. present petition is vehemently opposed by Shri Sudhir Mehta, learned advocate for Revenue. 6.1 It is vehemently submitted by learned advocate Shri Mehta appearing on behalf of Revenue that as now order of assessment is already passed, and therefore, petitioner would have statutory alternative remedy available by way of appeal before learned CIT [A], and therefore, present petition may not be entertained. 6.2 It is further submitted by Shri Sudhir Mehta, learned counsel for Revenue that even otherwise, in facts and circumstances of case, it cannot be said that reopening of assessment is bad in law. It is further submitted that in present case, reopening of assessment for A.Y 2012-2013 is Page 13 of 24 HC-NIC Page 13 of 24 Created On Mon Jul 17 14:32:24 IST 2017 C/SCA/21635/2016 CAV JUDGMENT within period of four years. It is submitted that original assessment was under Section143 [1] of Act, and therefore, there was no detailed scrutiny of claim made by assessee. It is submitted that therefore, Assessing officer is justified in reopening assessment for A.Y 2012-13. It is further submitted by Shri Sudhir Mehta that even otherwise, DVO s report can be piece of information on basis of which, Assessing Officer is justified in reopening assessment, which was as such under Section 143 [1] of Act. 6.3 Shri Sudhir Mehta, learned advocate for Revenue has heavily relied upon decision of Allahabad High Court in case of Sunder Carpet Industries v. Income-tax Officer, reported in [2010] 324 ITR 417 [Allahabad] in support of his submissions that if true facts are not recorded in books of account and fair market value has not been disclosed, reference can be made to DVO. It is submitted that in said decision, it is held that if Page 14 of 24 HC-NIC Page 14 of 24 Created On Mon Jul 17 14:32:24 IST 2017 C/SCA/21635/2016 CAV JUDGMENT valuation report discloses higher investments in construction which had not been disclosed in books of account, it can be said that there was escapement of income. It is submitted that in aforesaid decision, it is also held that Departmental Valuer s report constituted material for entertaining belief of escaped income in years under consideration, and therefore, re-assessments were held to be justified. 6.4 Now so far as contention on behalf of assessee that Assessing Officer had passed assessment order under Section 147 of Act in haste is concerned, it is submitted that as assessment was getting time barred on 31st December 2016, Assessing Officer had no option but to finalize re- assessment proceedings, and therefore, re-assessment proceedings came to be completed on 26th December 2016 on basis of material available on record and in absence of any clarification/ explanation submitted by assessee. It is further submitted by learned counsel for Revenue that in present Page 15 of 24 HC-NIC Page 15 of 24 Created On Mon Jul 17 14:32:24 IST 2017 C/SCA/21635/2016 CAV JUDGMENT case, assessment proceedings were finalized by Income-tax Officer, Ward-2 [2](3), Surat and in case of Ashwinkumar Chimanla Raval brother of petitioner and owner of land in question. It is submitted that according to ITO, Ward 2 [2](3), Surat vide communication dated 28th June 2015 intimated that assessee alongwith other five co-owners have sold agricultural land for sale consideration of Rs. 6,25,00,000/=. said Assessing Officer also informed that out of total consideration of sale, assessee received Rs. 2,06,25,000/= being stake-holder of 33%. It is submitted that on perusal of records, it was also seen that said land in question was ancestral land and fair market value as on 1st April 1991 was estimated at Rs. 77,44,375/= by registered Valuer for calculation of long term capital gain. Accordingly, cost of acquisition of share of assessee in land in question was arrived at Rs. 25,22,644/= and after indexation, long term capital gain was arrived at Rs. 8,22,245/= which was shown by assessee at Page 16 of 24 HC-NIC Page 16 of 24 Created On Mon Jul 17 14:32:24 IST 2017 C/SCA/21635/2016 CAV JUDGMENT time of filing of return. It is submitted that on perusal of Valuation Report, it was noticed that value estimated by registered valuer as on 1st April 1981 was on higher side and in variance with its fair market value, and fair market value of land as on 1st April 1981; as per DVO, Surat estimated at Rs. 10,19,250/= as on 1st April 1981, accordingly, one-third share of long term capital gain in case of assessee works out to RS. 1,79,84,633/=, and therefore, difference of Rs. 1,71,62,388/= has escaped assessment. It is submitted that therefore, Assessing Officer had valid reason to believe that income of Rs. 1,71,62,388/= has escaped assessment within meaning of Section 147 of Act. It is submitted that notice under Section 148 of Act has been rightly issued. It is submitted that on identical issue in case of Shri Ashwinkumar Chimanlal Raval for A.Y 2012-2013, he has also one- third holding in same property on which assessment was finalized by ITO, Ward 2 [2](1), Page 17 of 24 HC-NIC Page 17 of 24 Created On Mon Jul 17 14:32:24 IST 2017 C/SCA/21635/2016 CAV JUDGMENT Surat which was challenged before CIT [A], Surat and similar addition has been confirmed by learned CIT [A], Surat vide Order dated 29th August 2016. It is submitted that therefore in facts and circumstances of case, Assessing Officer is justified in reopening assessment for A.Y 2012-2013 on considering DVO s report. It is submitted that therefore, decisions relied upon by learned counsel for petitioner-assessee shall not be applicable to facts of case on hand. Making above submissions, it is requested to dismissed present petition. 7. In rejoinder, Shri S.N Soparkar, learned counsel for petitioner-assessee has vehemently submitted that reference to assessment order of Shri Ashwin Chimanlal Raval is ill founded because in that case, concerned assessee had not given any reply to show cause notice for making addition on ground of difference in value as on 1st April 1981. It is submitted that even in reasons recorded, there is Page 18 of 24 HC-NIC Page 18 of 24 Created On Mon Jul 17 14:32:24 IST 2017 C/SCA/21635/2016 CAV JUDGMENT no reference to assessment order of Shri Ashwinkumar Chimanlal Raval, and therefore, respondent now cannot take recourse to improve or modify reasons recorded. It is submitted that reasons once recorded has to be seen and evaluated in same form and no modification or improvement is allowed. Making above submissions, it was requested to allow present petition. 7.1 Heard learned advocates appearing on behalf of respective parties at length. 8. At outset, it is required to be noted that in present case, action of Assessing Officer in reopening assessment for A.Y 2012-2013 and also subsequent order under Section 147 of Act dated 26th December 2016 is under challenge. 9. Having heard learned advocates appearing on behalf of respective parties, perusing material on record and even reasons recorded to reopen assessment for A.Y 2012-2013, it appears that considering difference in fair market value Page 19 of 24 HC-NIC Page 19 of 24 Created On Mon Jul 17 14:32:24 IST 2017 C/SCA/21635/2016 CAV JUDGMENT determined by registered valuer of assessee and D.V.O, Surat, it has been found that value estimated by registered valuer of assessee as on 1st April 1981 was on higher side and in variance with fair market value which has resulted into escapement of income from assessment. 9.1 It is true that in present case, there was delay in supplying reasons recorded by Assessing Officer and thereafter assessment order has been passed on 26th December 2016. However, it is required to be noted that as such, last date for completing assessment was 31st December 2016 otherwise, assessment was getting time bared and therefore, Assessing Officer had no other alternative but to pass order of assessment under Section 147 of Act on 26th December 2016. Therefore, prima facie, it can be said that in present case, assessee had not followed time bound programme/limit prescribed by this Court in case of Commissioner of Income-tax v. Puja Prints [Supra] and Page 20 of 24 HC-NIC Page 20 of 24 Created On Mon Jul 17 14:32:24 IST 2017 C/SCA/21635/2016 CAV JUDGMENT in case of Commissioner of Income-tax v. Gauranginiben S. Shodhan [Supra]. However, considering affidavit-in-reply and material on record so also order of assessment, it appears that in case of brother of assessee and co-owner of very land ie., in case of Shri Ashwinkumar Chimanlal Raval, Assessing Officer had determined/estimated, and/or considered fair market value as on 1st April 1981 at Rs. 10,19,250/= and consequently, assessment order has been passed in case of co-owner of very land in question estimating fair market value at RS. 10,19,250/= as on 1st April 1981 and accordingly, long term capital gain has been worked out. It is reported that in case of co-owner of very land in question ie., Shri Ashwinkumar Chimanlal Raval, learned CIT [A] dismissed appeal preferred by said assessee, and therefore, fair market value which was applied/estimated in case of co-owner is required to be considered and applied by Assessing Page 21 of 24 HC-NIC Page 21 of 24 Created On Mon Jul 17 14:32:24 IST 2017 C/SCA/21635/2016 CAV JUDGMENT Officer, even in case of assessee being co- owner of very land in question, since there cannot be two different estimations of fair market value as on 1st April 1981 with respect to same land but in case of different assessees/co-owners. Under circumstances, now when order of assessment is already passed, in aforesaid peculiar facts of case, we refuse to entertain present petition challenging order of assessment under Section 147 of Act and relegate petitioner to prefer appeal before CIT [A] against order of assessment under Section 147 of Act and keeping all contentions/defence which would be available to parties; more particularly available to petitioner-assessee. If at this stage, assessment order under Section 147 of Act in case of petitioner assessee is set-aside, in that case, same shall affect case of Revenue in case of co- owner of very land in question. As observed hereinabove, as such there cannot be two estimations Page 22 of 24 HC-NIC Page 22 of 24 Created On Mon Jul 17 14:32:24 IST 2017 C/SCA/21635/2016 CAV JUDGMENT of fair market value as on 1st April 1981 in respect of very land in question, but in case of different assessee/co-owner. 9.2 In view of above peculiar facts and circumstances, without expressing anything further on merits in favour of either parties, we relegate petitioner to avail alternative statutory remedy available by way of appeal before CIT [A] against order of assessment under Section 147 of Act. As and when such appeal is preferred, same is directed to be considered in accordance with law and on merits. All contentions/defences which will be available to petitioner are kept open to be considered by appellate authority in accordance with law on its own merits and not entertaining present petition challenging impugned order of assessment may not be construed that we we have expressed anything on merits and appellate authority to consider appeal on merits in accordance with law. Page 23 of 24 HC-NIC Page 23 of 24 Created On Mon Jul 17 14:32:24 IST 2017 C/SCA/21635/2016 CAV JUDGMENT 9.3 At cost of repetition, we state that we have not expressed anything on merits in favour of either parties. For reasons stated hereinabove, we refuse to entertain present petition and relegate petitioner-assessee to avail statutory remedy available by way of appeal before CIT [A]. 10. Accordingly, present petition stands dismissed with above liberty. Notice discharged. [M.R Shah, J.] [B.N Karia, J.] Prakash Page 24 of 24 HC-NIC Page 24 of 24 Created On Mon Jul 17 14:32:24 IST 2017 Maheshchandra Chimanlal Raval v. Income-tax Officer-Ward 2(2)(3)
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