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TMI Blog2007 (2) TMI 123X X X X Extracts X X X X X X X X Extracts X X X X ..... nd after the sanction of the scheme of amalgamation, called M/s.Fisher Xomox Sanmar Limited, filed its return for the assessment year 1993-94 which was completed under section 143(3) of the Act. 3. Then, the Department issued a notice under Section 148 of the Act for reassessment stating that the income had escaped assessment on the basis of transfer of excess assets, etc., as a result of amalgamation and required the petitioner to file a return of income for which the petitioner informed the Department to treat the original return as a return pursuant to the notice under Section 148 of the Act. 4. However, the petitioner approached this Court in W.P.No.10065 of 2003 ( Fisher-Xomox Sanmar Ltd. v. Asst. CIT [2004] 271 ITR 393) for issue of a writ of Mandamus forbearing the respondent from making assessment under Section 147 read with Section 143 of the Act, on the ground that the respondent had not recorded reasons for reassessment in writing. Under such circumstances, this Court by order dated 31.3.2003 made in W.P.No.10065 of 2003, directed the Assessing Officer to furnish the reasons and to consider the objections, if any, filed by the petitioner and pass appropria ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f the Act separately. Aggrieved by the said proceedings dated 2.6.2003, the petitioner has filed the above writ petition. 8. The core contention of Mr.Ramachandran learned senior counsel for the petitioner is that the very initiation of impugned proceedings is barred by limitation and therefore, the order of reassessment made under Section 147 of the Act is without jurisdiction and in which case, the petitioner is entitled to seek the relief as prayed for. 9. Per contra, the respondent Revenue in their detailed counter affidavit had stated that the initiation of the proceedings for reassessment is well within the time as per Section 149 of the Act, as in force during the relevant assessment year 1993-94, which reads as under: "149. Time limit for notice.-- (1) No notice under section 148 shall be issued for the relevant assessment year,-- (a) in a case where an assessment under sub-section (3) of section 143 or section 147 has been made for such assessment year, (i) if four years have elapsed from the end of the relevant assessment year, unless the case falls under sub-clause (ii) or sub-clause (iii) ; (ii) if four years, but not more than seven years, have ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... prior to the commencement of the amended provisions. Therefore, the unamended provision of Section 149, which was in force prior to 1.6.2001 is alone applicable to the instant case. Hence, it is contended that the initiation of the proceedings under Section 148 of the Act is well within the time. 11 In any event, on merits, it is contended by the learned standing counsel for the respondent that the share holding pattern of M/s.Xomax Valves (I) Limited changed many times as upto 31.3.1991, it had a team of 19 shareholders, between 27.2.1992 to 31.3.1992, it had three shareholders and between 1.4.1992 to 31.12.1992, it was reduced to only one major shareholder M/s. Xomox (I) Ltd and its six nominees. Therefore, it is contended by the Revenue that the case of the petitioner is a cross merger between the M/s. Xomax India Ltd., and M/s. Xomas Valves India Ltd., and these facts are not disclosed by the assessee during the course of original assessment proceedings under Section 143(3) of the Act. These facts as noted by the Assessing Officer, as a result of detailed enquiry, after the completion of the assessment proceedings under Section 143(3) of the Act, reveal that the old the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t in dispute that the scheme of amalgamation approved by this Court on 28.4.1993 does not contain the material details as to the exchange share value pursuant to the amalgamation. 18. Moreover, the reassessment notice was issued on 31.5.2001, but Section 149 was amended only w.e.f 1.6.2001 and therefore, the pre-amended provision of Section 149 referred to above is applicable and in which case, we have no hesitation to hold that the issuance of notice for reassessment under Section 148 is well within the time as per clause (iii) of Section 149(a) of the Act. Hence, the contention that the impugned reassessment is barred by limitation and suffers for want of jurisdiction fails. 19. Issue (ii) - To what relief the petitioner is entitled to? 20. When the petitioner has concededly not furnished the relevant materials as to the exchange share value, the same is a disputed question of fact, which, in our considered opinion, cannot be gone into in judicial review exercising the power conferred under Article 226 of the Constitution of India. On the other hand, against the order dated 2.6.2003 a statutory appeal lies to the Commissioner of Income Tax (Appeals). 21. The rem ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Article 226 of the Constitution. But then the Court must have good and sufficient reason to bypass the alternative remedy provided by statute. Surely matters involving the revenue where statutory remedies are available are not such matters." (emphasis supplied) 25. Following the ratio laid down in: (i) G.Veerappa Pillai v. Raman and Raman Ltd., AIR 1952 SC 192; (ii) Union of India v. T.R.Varma, AIR [1957-58] 13 FJR 237 (SC) AIR 1957 SC 882; (iii) C. A. Abraham v. ITO, [1961] 41 ITR 425 (SC) ; AIR1961 SC 609; (iv) Titaghur Paper Mills Co. Ltd. v. State of Orissa , [1983] 142 ITR 663 (SC) ; 1983 AIR 1983 SC 603; (v) Asst. Collector of Central Excise v. Dunlop India Ltd., [1985] 154 ITR 172 (SC) ; [1985] 58 Comp Cas 145 ; [1985] 1 SCC 260 ; AIR 1985 SC 330; (vi) Sheela Devi v. Jaspal Singh, AIR 1999 SC 2859; [1999] 1 SCC 209 ; and (vii) A.Venkatasubbiah Naidu v. S.Chellappan, 2000 (7) SCC 695, a Division Bench of this Court in Dr.K.Nedunchezhian v. Deputy CIT, [2005] 279 ITR 342, held that when there is an alternative remedy, it may not be proper for this Court to invoke Article 226 of the Constitu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ecognised exceptions to the doctrine of exhaustion of statutory remedies. First is when the proceedings are taken before the forum under a provision of law which is ultra vires, it is open to a party aggrieved thereby to move the High Court for quashing the proceedings on the ground that they are incompetent without a party being obliged to wait until those proceedings run their full course. Secondly, the doctrine has no application when the impugned order has been made in violation of the principles of natural justice. We may add that where the proceedings itself are an abuse of process of law the High Court in an appropriate case can entertain a writ petition. 16. Where under a statute there is an allegation of infringement of fundamental rights or when on the undisputed facts the taxing authorities are shown to have assumed jurisdiction which they do not possess can be the grounds on which the writ petitions can be entertained. But normally, the High Court should not entertain writ petitions unless it is shown that there is something more in a case, something going to the root of the jurisdiction of the officer, something which would show that it would be a case of palpabl ..... X X X X Extracts X X X X X X X X Extracts X X X X
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