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TMI Blog2018 (8) TMI 1755X X X X Extracts X X X X X X X X Extracts X X X X ..... ed this Court in its writ jurisdiction. We agree with the submissions of Ms. Archana Sinha, learned counsel representing the Revenue that the Act of 1961 provides for certain statutory authorities vested with the powers to examine the materials based on which a finding may be recorded. Notice under Section 148 of the Act, granted liberty to the respondents to file an appropriate petition/appeal against the order of reassessment passed under Section 148 of the Act. In absence of any concluded facts being available before us, it would not be proper to interfere with the impugned notice and order in the present writ proceeding. We, therefore, dismiss the writ application giving liberty to the petitioner to avail statutory alternative remedies, if so advised, in the facts and circumstances of the case. - Civil Writ Jurisdiction Case No.10859 of 2018 - - - Dated:- 2-8-2018 - Rajendra Menon, CJ And Rajeev Ranjan Prasad, JJ. For the Petitioners : Mr. Ajay Kumar Rastogi, Adv For the Respondents : Smt. Archana Sinha, Adv Mr. Alok Kumar, Adv. Mr. Sanjeev Kumar, Adv JUDGMENT ( Per : Honourable Mr. Justice Rajeev Ranjan Prasad ) This writ application has been pre ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... investment in R D is being promoted by the government. First condition to avail this benefit is that the institution claiming deduction under Section 35(2AB) must be registered for R D work with the DSIR, Ministry of Science and Technology. The recipient of the beneficiary is further obliged to present annually to DSIR the account books which it separately maintains to account for the expenses incurred towards R D. In the opinion of the Assessing Officer in one of the files pertaining to period assessment year 2011-12 to assessment year 2015-16 there exists any indication to the correct amount of expenditure towards R D. Mr. Rastogi has relied upon the various judgments including the judgment of this Court in the case of Commissioner of Income-Tax v. Agarwalla Brothers reported in [1991] 189 ITR 786 (Pat) and the judgment of the Hon ble Supreme Court of India in the case of Income Tax Officer Ward No.16(2) Vs. M/S TechSpan India Private Ltd. Anr. It is submitted that this Court in the case of Agarwalla Brothers (supra) was of the view that in the light of law laid down by the Hon ble Supreme Court, this Court can always enquire and ascertain whether the reasons to believe entert ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... in the facts of the present case. Learned counsel submits that the initiation of reassessment of proceeding is based upon certain facts which have given reasons to believe that income chargeable to tax has escaped assessment. Learned counsel submits that from information received from the DSIR it is found that the petitioner had not complied with the requirements which would have made it eligible to get the benefit of R D expenses. Learned counsel submits that out of total deduction of claim of ₹ 103,24,46,357/- under Section 35(2AB) of the Act, the amount of ₹ 54,72,75,816/- was disallowed and ₹ 48,51,76,541/- was allowed without any basis. It is submitted that the Assessing Officer has reasons to believe that such amount is escaped amount and, therefore, it is being a pure question of fact cannot be gone into in a writ proceeding. Learned counsel submits that the judgments relied upon on behalf of the petitioner would not be applicable in the facts and circumstances of the present case. It is further submitted that the notice under Section 148 has been issued within the time limit as provided under Section 149 of the IT Act. A further objection has been taken th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e disclosed by the assessee and the Income-Tax officer found the investments shown to be reasonable, this Court proceeded to hold that the Tribunal had rightly quashed the entire assessment order. In the present case, we do not have benefit of concluded finding of facts because the petitioner has directly approached this Court in its writ jurisdiction. We agree with the submissions of Ms. Archana Sinha, learned counsel representing the Revenue that the Act of 1961 provides for certain statutory authorities vested with the powers to examine the materials based on which a finding may be recorded. Paragraph 19, 20 and 21 of the judgments of the Hon ble Apex Court in Chhabil Dass Agarwal (supra) would be important to take note of hereinabove:- 19. Thus, while it can be said that this Court has recognized some exceptions to the rule of alternative remedy, i.e., where the statutory authority has not acted in accordance with the provisions of the enactment in question, or in defiance of the fundamental principles of judicial procedure, or has resorted to invoke the provisions which are repealed, or when an order has been passed in total violation of the principles of natural justi ..... X X X X Extracts X X X X X X X X Extracts X X X X
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