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TMI Blog2011 (12) TMI 361X X X X Extracts X X X X X X X X Extracts X X X X ..... ned - however stay granted subject to pre deposit of 25% to pursue the matter before CIT(A). - Writ Petn. Nos. 11092 of 2010 and 7752 of 2011 - - - Dated:- 5-12-2011 - Vineet Kothari, J. Dinesh Mehta for the Assessee K.K. Bissa for the Revenue ORDER Vineet Kothari, J:- 1. These two writ petitions have been filed by the petitioner-assessee challenging the reassessment proceedings under s. 147/148 of the IT Act, 1961 (for short, hereinafter referred to as 'Act of 1961') for the asst. yr. 2006-07. 2. The matter arises on account of difference in the cost of construction of a hotel building by the assessee during this assessment year in which the assessee disclosed the cost of construction at Rs. 38,92,848 whereas upon reference to the Departmental Valuation Officer, Ajmer (DVO) in accordance with provision of s. 142A of the Act of 1961 inserted by Finance Act No. 2 of 2004 with retrospective effect from 15th Nov., 1972, the said DVO on 22nd Dec., 2009 estimated the cost of construction of the hotel building at Rs. 1,17,92,000. Thus, to assess the difference amount of Rs. 78,99,152 vide Annex. 6 (Rs. 1,17,92,000 - Rs. 38,92,848) as undisclosed income ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... essee to the extent of Rs. 26,70,935 being 100 per cent of the tax evaded by the assessee. 6. Learned counsel for the petitioner-assessee, Mr. Dinesh Mehta initially submitted that there was a breach of principles of natural justice in the present matter, as the assessing authority could have very well granted further time to the assessee on 29th Nov., 2010 and even though he did not fix the next date for 27th Dec., 2010 but impugned order was passed on the said date. The said assessing authority ought to have waited for the result of the present writ petition, since the show-cause notices were issued on 29th Nov., 2010 itself; and the assessing authority was apprised of the said fact. In the alternative, he prayed that against the impugned assessment order dt. 27th Dec., 2010 and penalty order under s. 271(1)(c) of the Act passed on 27th June, 2011, the assessee may be permitted to prefer an appeal before the appellate authority, namely, CIT(A) in accordance with s. 246A of the Act and till such appellate authority decides the appeal on merits, within the time framed by this Court, the coercive process for recovery of impugned demand of tax and penalty may not be taken against ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed if an equally adequate and efficacious alternative remedy is available to the petitioner, unless the case falls within the compass of well settled exceptions to such norms, namely,- (i) if the vires of the Act or rules are under challenge, (ii) if there is a breach of principles of natural justice, or (iii) if the impugned notice or order is without jurisdiction of the authority concerned. 11. The two of such exceptions are not even invoked in the present case and only the third ground, namely, the breach of principles of natural justice is alleged by the petitioner in the present case. 12. From the sequence of dates, noted above, this Court is of the opinion that even this ground of breach of principles of natural justice is not established in the present case. The reopening on the ground of valuation of hotel building in the present case was the right reserved by the assessing authority even while passing the original assessment order itself, even though there was no such requirement in law and the assessing authority could always on the reasons to believe that some income has escaped the assessment for the given reasons, could invoke his powers of reassess ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ne that, now raising the plea of breach of principles of natural justice, does not lie with the assessee. This Court sees no breach of principles of natural justice in the present case. Therefore, on this ground, the writ petition cannot be entertained. 16. Admittedly, an appeal lies against the impugned reassessment order as well as penalty order before the appellate authority, namely, CIT(A) as per s. 246A of the Act. Even as per s. 253, a second appeal is provided before the Tribunal, and thereafter on substantial questions of law an appeal is provided to High Court under s. 260A of the Act. Thus, the Act provides for a complete mechanism of remedies, if an assessee is aggrieved by an order of assessment for raising demand of tax. In such circumstances, the case does not fall within the exceptional categories for invoking extraordinary jurisdiction of this Court under Art. 226 of the Constitution of India and the present writ petition is not maintainable, since the impugned assessment order and penalty order are under challenge. 17. As far as merits of the contentions of the assessee as to whether such difference in valuation of hotel building could be taxed as concealed ..... X X X X Extracts X X X X X X X X Extracts X X X X
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