2021 (7) TMI 177 - HC - Income Tax

Maintainability of appeal - Notice issued u/s 148 on a dead person - HELD THAT - This Court is of the considered opinion that the appellate authority is the final fact finding authority. The facts in dispute between the parties cannot be adjudicated in a writ proceedings, under Article 226 of the Constitution of India, which is to be undertaken by the appellate authority with reference to the original records and documents. Thus, exhausting the appellate remedy is of paramount importance and would be of greater assistance to the High Court to exercise the power of judicial review, under Article 226 of the Constitution of India. The High Court need not undermine the importance of the appellate remedy, as the statute contemplates such appellate remedy with a specific intention to redress the grievances of the assessees and such a benefit need not be denied to an assessee. Various principles for exhausting the appellate remedy and the circumstances under which the High Court may dispense with the appellate remedy are considered by this Court in number of Writ Petitions. Preferring an appeal is the rule. Entertaining a Writ Petition before exhausting the appellate remedy is an exception. Undoubtedly, writ proceedings may be entertained before exhausting the appellate remedy.In view of the facts and circumstances, the petitioner is at liberty to approach the appellate authority, by preferring an appeal in a prescribed format, following the procedures contemplated, within a period of four weeks from the date of receipt of a copy of this order. In view of the facts and circumstances, the petitioner is at liberty to approach the appellate authority, by preferring an appeal in a prescribed format, following the procedures contemplated, within a period of four weeks from the date of receipt of a copy of this order.

Issues involved: Challenge to assessment order under Income Tax Act, legality of notice issued on a deceased person, exhaustion of appellate remedy before filing a writ petition.

Analysis:
1. Challenge to Assessment Order: The petitioner challenged the assessment order dated 22.12.2017 passed under Section 144 and Section 147 of the Income Tax Act for the assessment year 2010-11. The contention was that the notice issued on a deceased person rendered all subsequent proceedings and the assessment order itself null and void.

2. Legality of Notice on Deceased Person: The petitioner argued that the notice issued under Section 148 of the Act on a deceased person was illegal. The petitioner emphasized that basing the entire proceedings on such a notice warranted setting aside the assessment order.

3. Exhaustion of Appellate Remedy: The respondent's counsel contended that the petitioner had not exhausted the appellate remedy as per Section 246 (A) of the Act before challenging the assessment order through a Writ Petition. The Court emphasized the importance of exhausting the appellate remedy as the appellate authority is the final fact-finding authority.

4. Judicial Review and Appellate Remedy: The Court highlighted that the appellate authority plays a crucial role in fact-finding and redressing grievances of assessees. It emphasized that the High Court should not undermine the appellate remedy provided by the statute. The Court noted that entertaining a Writ Petition before exhausting the appellate remedy is an exception, granted only in cases of imminent threat or gross injustice.

5. Role of Appellate Authorities: The judgment stressed that appellate forums are final fact-finding authorities possessing expertise in specific fields. The findings of these forums are valuable for the High Court's exercise of judicial review under Article 226 of the Constitution of India. The Court cautioned against routine entertainment of Writ Petitions without exhausting statutory remedies.

6. Delay as Ground for Writ Petition: The judgment acknowledged delay as an acceptable ground for entertaining a Writ Petition. It noted a rising trend of filing Writ Petitions to avoid statutory appeals' pre-deposits and due to perceived time-consuming nature of appellate remedies.

7. Disposition and Directions: The Court granted the petitioner liberty to approach the appellate authority by filing an appeal within four weeks from the date of the order. The appellate authority was directed to entertain the appeal, condone any delay, and adjudicate on merits promptly. The Writ Petition was disposed of with no costs, and the connected Miscellaneous Petition was closed.

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