HC dismissed writ filed against Penalty Order without filing any appeal against Assessment order

Poddar Real Estates Pvt. Ltd Vs ITO (Calcutta High Court)

By this writ petition petitioner has made prayer for cancellation of the impugned 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 impugned penalty order dated 23^rd 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 23^rd 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.

Now 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 aforesaid impugned assessment order dated 2nd December, 2016 it has made an application on 12t^h March, 2019 for providing the certified copy of the said assessment order including notices.

Now in December 14, 2022 petitioner has filed this writ petition alleging the impugned penalty order against which it has already chosen to file appeal is bad in law though the said appeal proceedings was initiated by the petitioner itself and which is still pending. So far as the question of challenging the impugned assessment order is concerned, 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 and 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 now 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.

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