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TMI Blog2019 (6) TMI 1182X X X X Extracts X X X X X X X X Extracts X X X X ..... meaning of Section 292B. If that be so, it cannot be held to be invalid merely by reason of mistake or defect i.e., mistake or defect of issuing it in a template and not scoring of the relevant ground and leaving out the applicable ground. If it is not a defect of scoring of the inapplicable ground it is a case of using the conjunction and by scoring of or , if it is predicated on both grounds. If aforesaid position is clarified and thereafter the impugned SCN is carried to its logical end, it will satisfy all parameters and ingredients of NJP. This Court is reminded of the observation in Mumbai International Airport Private Limited Vs. Golden Chariot Airport and another [ 2010 (9) TMI 1153 - SUPREME COURT] where Hon ble Supreme Court held that action of law is not a game of chess . Merely because the Revenue has made a move and there is an error in the move, there is nothing to show that no opportunity should be given to the Revenue to correct the error by issuing a corrigendum or addendum and then proceeding with the matter. After all it is not an irreversible move in a game of chess. This Court passes the following order: a) the impugned SCN being SCN dated 23.12.2016 bearing re ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... convenience. 4. This matter is listed under the caption 'FOR ADMISSION' today in the motion list. 5. Ms.Pushya Sitaraman, learned Senior Counsel on behalf of the counsel on record for the writ petitioner is before this Court. Mr.Naveen Durai Babu, learned Junior Standing Counsel for Income Tax accepts notice on behalf of both the respondents. To be noted, there are two respondents in the instant writ petition and both the respondents are official respondents. 6. In the aforesaid scenario, with the consent of learned counsel on both sides, the main writ petition itself is taken up. With the consent of both sides main writ petition is being heard out and the same is being disposed of. 7. Short facts shorn of unnecessary particulars and details or in other words facts that are imperative for appreciating this order are as follows: (a) the petitioner is engaged in the business of export of software and 'Information Technology Enabling Services' ('ITES' for brevity) and is registered as a 'Software Technology Park of India' Unit ('STPI' for brevity) under what is described as Software Technology Park Scheme. (b) 'Assessment year 2013- ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... for the writ petitioner. 9. Learned Senior Counsel for the writ petitioner assailed the impugned SCN on the grounds which can be summarised as below: (a) impugned SCN is in a template and therefore, it is not clear as to whether the impugned SCN has been issued on the basis that the writ petitioner has 'concealed particulars of income' or 'furnished inaccurate particulars' of such income. (b) in support of the proposition that 'concealing particulars of income' and 'furnishing of inaccurate particulars of income' are expressions which fall and operate in different realms Commissioner of Income Tax Vs. SSA's Emerald Meadows reported in (2015) 94 CCH 0334 KarHC, Commissioner of Income Tax Vs. Samson Perinchery reported in (2017) 392 ITS 4 (Bom), Muninaga Reddy Vs. Assistant Commissioner of Income-TAx reported in (2017) 396 ITR 398 (Kar), Principal Commissioner of Income Tax Vs. Baisetty Revathi reported in (2017) 398 ITR 88 (AP) and T.Ashok Pai Vs. Commissioner of Income Tax reported in (2007) 292 ITR 11W (SC) were pressed into service. 10. In response to the above submissions, learned Revenue counsel, who accepted notice on behalf of both th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... that no penalty can be imposed on the assessee on such a vague notice and that Karnataka High Court judgment i.e., in Manjunatha Cotton Principle buttress the submission. 14. This Court now proceeds to carefully consider the submissions made on both sides. 15. The proposition that the grounds of 'concealment of income' and 'furnishing of inaccurate particulars' qua Section 27(1)(c) of IT Act are clearly distinct expressions and that they fall under different realms admits of no exception and made two qualification. All the case laws referred to supra certainly lay down this proposition very clearly. 16. To be noted, I had the occasion to pen two judgments touching upon ingredients of Section 27(1)(c) and they are judgment dated 14.06.2018 in T.C.A.No.239/2017 [Principal Commissioner of Income Tax Vs. Trisha Krishnan] and a judgment dated 30.08.2017 in T.C.A.No.440 of 2017 [Principal Commissioner of Income Tax 2, Vs. M/s.F L Smidth Limited,]. To be noted, these two judgments were penned by me, but for a Division Bench in Statutory Income Tax Appeals under Section 260A of IT Act. This is mentioned only for the purpose of emphasising that the distinction between the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... gh Court will quash SCN has also been laid down in a long line of authorities and broadly they are cases (a) where SCN can be issued without jurisdiction by the authority B) where SCN reopens a well settled position of law c) where SCN has prejudged the issue and d) where SCN has been issued with malafides. 22. It is nobody's case before this Court that impugned SCN falls under any one of the exceptions, an adumbration of which has been made supra. A perusal of template itself reveals that it is based on the well settled principle that 'concealment of income' and 'furnishing of inaccurate particulars' are distinct. Merely because there is an error of not scoring of one of the two or replacing 'or' with 'and' it cannot be gainsaid that settled legal principle of distinction between the two expressions has been disregarded. As the impugned SCN is in a template the error is secretarial in nature and petitioner's counsel says this is also owing to inadvertence. 23. To be noted, the aforesaid adumbration of exceptions are not exhaustive and it is only broad heads for the limited purpose of disposal of instant writ petition. 24. Furthering the d ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... lving recovery of taxes, cess, fees, other types of public money and the dues of banks and other financial institutions. In our view, while dealing with the petitions involving challenge to the action taken for recovery of the public dues, etc., the High Court must keep in mind that the legislations enacted by Parliament and State Legislatures for recovery of such dues are a code unto themselves inasmuch as they not only contain comprehensive procedure for recovery of the dues but also envisage constitution of quasi-judicial bodies for redressal of the grievance of any aggrieved person. Therefore, in all such cases, the High Court must insist that before availing remedy under Article 226 of the Constitution, a person must exhaust the remedies available under the relevant statute. 55.It is a matter of serious concern that despite repeated pronouncement of this Court, the High Courts continue to ignore the availability of statutory remedies under the DRT Act and the SARFAESI Act and exercise jurisdiction under Article 226 for passing orders which have serious adverse impact on the right of banks and other financial institutions to recover their dues. We hope and trust that in futur ..... X X X X Extracts X X X X X X X X Extracts X X X X
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