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TMI Blog2018 (3) TMI 55X X X X Extracts X X X X X X X X Extracts X X X X ..... ents to be furnished by the respondent within two weeks from the date of receipt of the copies of the documents. - W.P.No.10666 of 2006 - - - Dated:- 23-2-2018 - M. Duraiswamy, J. For the Petitioner : Mr.R.Thiagarajan, Senior Counsel for Mr.V.Sanjeevi For the Respondent : Mrs.Hema Muralikrishnan, Senior Standing Counsel ORDER The petitioner has filed the above Writ Petition to issue a writ of certiorari to call for the records of the respondent relating to the assessment order dated 30.03.2006 in respect of the Assessment Year 1987-88 and quash the same. 2.It is the case of the petitioner that there was a search and seizure under Section 132 of the Income Tax Act in relation to the transaction during the year 1985-86 (Assessment Year 1987-88) on 13.12.1988. The petitioner's assessment was completed for the Assessment Year 1987-88 under Section 143(3) of the Income Tax Act on 27.03.1989. Thereafter, under Section 263 of the Income Tax Act, the assessment was reopened on 13.09.1989. 2.1.Against the order of reopening of the assessment, the petitioner filed an Appeal before the Income Tax Appellate Tribunal on 01.12.1989. While the said Appeal was ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r cross examination. On 16.03.2006, the petitioner was furnished with copies of some of the seized documents from Wavin. The petitioner filed a petition under Section 144-A of the Income Tax Act to the Additional Commissioner of Income Tax on 20.03.2006. On 27.03.2006, the petitioner filed his objections, along with a number of relevant documents and notes. The petitioner also filed the details sought for by the respondent on 28.03.2006. Thereafter, by order dated 30.03.2006, the respondent completed the assessment and passed the impugned order without following the directions of the Income Tax Appellate Tribunal and in violation of principles of natural justice. The petitioner has filed the above Writ Petition. 3.The respondent, in their counter, has stated that opportunity was given to the assessee as directed in the order of the Income Tax Appellate Tribunal and the assessee's submissions were duly taken into account while passing the fresh assessment order dated 30.03.2006. Further, the respondent contended that the impugned order has been passed by the respondent after following the directions given by the Income Tax Appellate Tribunal. 4.Heard Mr.R.Thiagarajan, lear ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... pressed by this Court in First ITO v. M/s. Short Brothers (P) Ltd., [(1966) 3 SCR 84 : AIR 1967 SC 81] and State of U.P. v. Indian Hume Pipe Co. Ltd., [(1977) 2 SCC 724 : 1977 SCC (Tax) 335]. That being the position, we do not consider the High Court's judgment to be vulnerable on the ground that alternative remedy was not availed. There are two well recognized 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. (ii)1992 Supp (1) Supreme Court Cases 443 [Union of India and others Vs. Kamlakshi Finance Corporation Ltd.] wherein the Apex Court held as follows: ... 6. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... direct the Collector to apply to the Appellate Tribunal for the determination of such points arising out of the decision or order as may be specified by the Board in its order. Under Sub-section(2) the Collector of Central Excise, when he comes across any order passed by an authority subordinate to him, if not satisfied with this legality or propriety, may direct such authority to apply to the Collector (Appeals) for the determination of such points arising out of the decision or order as may be specified by the Collector of Central Excise in his order and there is a further right of appeal to the department. The position now, therefore, is that,if any order passed by an Assistant Collector or Collector is adverse to the interests of the Revenue, the immediately higher administrative authority has the power to have the matter satisfactorily resolved by taking up the issue to the Appellate Collector or the Appellate Tribunal as the case may be. In the light of these amended provisions, there can be no justification for any Assistant Collector or Collector refusing to follow the order of the Appellate Collector or the Appellate Tribunal, as the case may be, even where he may have so ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ere set aside by the Income Tax Appellate Tribunal. 8.On a perusal of the order passed by the Income Tax Appellate Tribunal dated 16.06.2004, it could be seen that the Tribunal had set aside the order dated 31.03.1992 passed by the Assessing Officer and also the order dated 30.07.2003 passed by the Commissioner of Income Tax (Appeals) XII and remanded the matter to the Assessing Officer with a direction to decide the issue afresh after giving sufficient opportunity to put forward the case of the assessee. Further, the assessee was given an opportunity to cross examine those persons from whom the Assessing Officer recorded the statement. The relevant portion of the order passed by the Income Tax Appellate Tribunal reads as follows: ... 5.The learned D.R. submitted that now he is prepared to furnish copies of the seized material and therefore, suggested that the appeal may be decided by the Tribunal on merit or a remand report may be called from the Assessing Officer if required. In our view, the suggestion of the learned D.R. to decide the appeal on merit after furnishing the copies of the seized material to the assessee or call for a remand report would not meet the en ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... w. 9.After remand, the Assessing Officer issued a notice to the petitioner on 20.02.2006 calling upon them to appear for hearing on 23.02.2006. Thereafter, the petitioner filed their objections along with the documents on 27.03.2006. According to the petitioner, the respondent has not furnished the copies of the documents seized at the time of seizure on 13.12.1988. The respondent, without following the directions of the Income Tax Appellate Tribunal, had passed the impugned order on 30.03.2006. 10.On a perusal of the impugned order dated 30.03.2006, it is clear that the respondent had followed the order dated 31.03.1992 passed by the then Assistant Commissioner of Income Tax, City Circle-I (INV), Chennai and also the order passed by the Commissioner of Income Tax (Appeals) XII dated 30.07.2003. When both these orders were set aside by the Income Tax Appellate Tribunal on 16.06.2004, the respondent should not have followed the orders which were set aside by the Tribunal. That apart, the respondent has not followed the directions given by the Income Tax Appellate Tribunal and also has not furnished the copies of the documents to the petitioner. When the order passed by the A ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the address of V.K.Berlia, therefore, summons could not be sent to him to appear for examination. 17.In these circumstances, since the affidavit was produced by the petitioner, the petitioner should furnish the address of V.K.Berlia to the respondent, enabling the respondent to send notice to the said V.K.Berlia for examination. 18.In these circumstances, the impugned order dated 30.03.2006 is liable to be set aside. Accordingly, the same is set aside. The matter is remitted back to the respondent for fresh consideration. The respondent is directed to furnish all copies of the documents that were seized from M/s.Wavin India Limited and relied upon by the Assessing Officer in the assessment order dated 31.03.1992 to the assessee within a period of two weeks from the date of receipt of a copy of this order. The petitioner is directed to furnish the address of V.K.Berlia to the respondent within two weeks from the date of receipt of a copy of this order, enabling the respondent to send notice to the said V.K.Berlia for his examination. It is also open to the petitioner to file their objections/reply, after perusing the copies of the documents to be furnished by the respondent wi ..... X X X X Extracts X X X X X X X X Extracts X X X X
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