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TMI Blog2019 (9) TMI 1153X X X X Extracts X X X X X X X X Extracts X X X X ..... nt order could have been legally passed, the appellants cannot be allowed to contend that such orders have been passed dehors the principles of natural justice. Admittedly, show cause notices were served on each of the appellants prior to passing of the impugned reassessment orders. The case of the appellants cannot also said to be fall in any category of exceptions including about breach of any fundamental right where the remedy available in the Act of 2003 under the scheme of the Statute cannot be considered as effective and efficacious, particularly in the face of the fact that similarly situated assessees in many such identical cases, including some of the petitioners, have already approached the appellate authority and first appellate authority and thereafter the Tax Board and almost in all of them, penalty has been waived and number of sales tax revisions, as referred to above, then have been filed by the assessee before this Court, which are still pending. Appeal dismissed. - D.B. Special Appeal Writ No. 491/2017, 492/2017, 493/2017, 494/2017, 511/2017, 512/2017, 513/2017, 514/2017, 515/2017, 516/2017, 517/2017, 518/2017, 519/2017, 520/2017, 521/2017, 522/2017, 523/2017 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... wever that the period for filing the appeal has expired, the learned Single Judge gave liberty to the appellants to file appeal within 60 days from the date the judgement is pronounced. Learned Single Judge in taking that view mainly relied on the judgement of Himachal Pradesh High Court in Samsung India Electronics Pvt. Ltd. vs. State of Himachal Pradesh Ors.-(2017) 102 VST 78 (HP), in which case also the reassessment orders passed on the basis of judgement of the Supreme Court in Nokia India Pvt. Ltd., supra was directly challenged before the High Court in writ petitions, which were dismissed as not maintainable on the ground of availability of alternate remedy. We have heard Shri K.K. Sharma, learned senior counsel, Shri Siddharth Ranka, Shri Nikhil Gupta Shri Sameer Jain learned counsel for the appellants and Shri R.B. Mathur, learned counsel for the revenue at length. They have also supplemented their arguments by written submissions. The arguments were advanced both on the merits and also on the correctness of the judgement, dismissing the writ petitions on satisfaction by the learned Single Judge that the appellants have efficacious alternate remedy of ap ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... cases are without any jurisdiction and therefore the writ petitions can be directly maintained before this court. Availability of alternate remedy of appeal can never be a bar for exercise of extraordinary jurisdiction in exceptional cases before this Court under Article 226 of the Constitution of India. In matters where a lower authority has acted without jurisdiction or in violation of the principles of natural justice, writ petition before the High Court is maintainable and in such cases, the party ought not be relegated to alternative remedy. Reliance in support of this argument is placed on the judgement of the Supreme Court in following cases: 1. Raza Textiles vs. ITO-1973 (1) SCC 633 2. Calcutta Discount Co. vs. ITO-1961 (2) SCR 241 3. Jeans Knit Pvt. Ltd. vs. DCIT Bangalore-(2017) 77 Taxmann.com 176 SC 4. Collector of Central Excise and Land Customs vs. Sanawarmal Purohit-1979 (4) ELT J613 (SC) 5. Whirlpool Corporation vs. Registrar of Trade marks, Mumbai Ors.-(1998) 8 SCC 1 6. CIT vs. Chhabil Dass AgaRWAL-(2014) 1 SCC 603 7. Kuntesh Gupta vs. Management of Hin ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e judgement of the Supreme Court in DCIT vs. Simplex Concrete Piles (India) Ltd.- 2013 (358) ITR 129 (SC), Rajakumar Bapna vs. UOI-(2002) 125 Taxman 532 (Raj.), Sesa Goa vs. JCIT-(2007) 294 ITR 101 (Bom.), CIT vs. Baer Shoes-2011 (331) ITR 435 (Mad.), CIT vs. Austin Engineering Pvt. Ltd., SLP No.2843 of 2009, dated 16.03.2009, Austin Engineering Co. vs. JCIT-2009 (312) ITR 70 (Guj.) and CIT vs. Nedungadi Bank-2003 (264) ITR 545 (Mer.). Per contra, Shri R.B. Mathur, learned counsel for the revenue has argued that while in some cases, the Assessing Officer has issued show cause notice on the basis of judgement of the Supreme Court in Nokia India Pvt. Ltd., supra, but the satisfaction in some cases was also based on survey conducted at the business premises of the assessee s whereafter the details of sale of mobile phones and laptops along with chargers etc. were sought. The Assessing Officer in these matters served show cause notice on the assessees under Section 25, 55 and 61 of the Act of 2003 as to why additional tax, consequential interest and penalty may not be levied on the appellant-assessees for short payment of tax. The Assessing Officer after considering the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of appeal under Section 82 of the Act of 2013 before the Deputy Commissioner (Appeals) and if their grievances are not remedied by the first appellate authority, they have further remedy of further appeal before the Rajasthan Tax Board under Section 83 of the Act of 2003. It is only thereafter that they have the remedy of filing revision petition before this court under Section 84 of the Act. Shri R.B. Mathur, learned counsel for the revenue has submitted that in all the present cases, substantial part of the recovery has already been made as far as tax and interest is concerned and only penalty part has been stayed. In many cases, similarly situated parties including some of the petitioners like M/s. HCL Infosystems Ltd., Best IT Word and M/s. Acre India have filed appeals before the Deputy Commissioner and thereafter before the Rajasthan Tax Board. While in some cases, the Deputy Commissioner (Appeals) granted waiver of penalty, in certain other cases, the Rajasthan Tax Board granted such waiver. Revenue has not challenged such orders in so far as waiver of penalty is concerned. It is argued that appeal under Section 260A of Income Tax Act is provided only on subs ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sessee. What has to be however examined is whether the writ petitioners in these matters should be directly entertained by this court treating them under exceptional category so as to deviate from the normal rule of relegating the parties to avail the alternate remedy. Earliest judgement of the Supreme Court on which reliance has been placed by the learned counsel appearing for the assessee is Calcutta Discount Co., supra, in which case, the writ petitions were filed against the notice issued under Section 34 of the Income Tax Act, calling upon the assessee to submit fresh returns of its total income and the total world income assessable for the three accounting years relating to three assessment years. Argument was that the notices were issued without the existence of the necessary conditions precedent, which confers jurisdiction under Section 34, supra, particularly when the amendment of Section 34, supra was not retrospective, and that the assessment in respect of three years became barred long before 14.3.1951 when such notices were issued. The Single Bench of High Court allowed the writ petition, but the division bench of High Court in appeal reversed that judg ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... stitution is entertained, the High Court would insist that the party aggrieved by the order of a quasi-judicial tribunal should have recourse to the statutory authorities, which have power to give relief. But that is a rule of practice and not of jurisdiction. In appropriate cases, the High Court may entertain a petition even if the aggrieved party has not exhausted the remedies available under a statute before the departmental authorities. The question that arises for determination by this Court is whether the present one should be considered as an appropriate case to fall in any of the categories wherefor exceptions have been carved out, to entertain the writ petitions against the order of assessment directly in the High Court bypassing the hierarchy of appeals/revisions provided in the Act of 2003 under which the Assessing Officer has exercised the power to pass such order. We shall in this question seek guidance from the decided case laws on the subject. The Supreme Court in Thansingh Nathmal vs. Supt. of Taxes- AIR 1964 SC 1419 has held as under: 7. The High Court does not therefore act as a court of appeal against the decisio ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... evant observations made by the Supreme Court in para 11:- Before discussing the fact proposition, we would notice the principle of law as laid down by this Court. It is settled law that non-entertainment of petitions under writ jurisdiction by the High Court when an efficacious alternative remedy is available is a rule of self-imposed limitation. It is essentially a rule of policy, convenience and discretion rather than a rule of law. Undoubtedly, it is within the discretion of the High Court to grant relief under Article 226 despite the existence of an alternative remedy. However, the High Court must not interfere if there is an adequate efficacious alternative remedy available to the petitioner and he has approached the High Court without availing the same unless he has made out an exceptional case warranting such interference or there exist sufficient grounds to invoke the extraordinary jurisdiction under Article 226. (See: State of U.P. vs. Mohammad Nooh, AIR 1958 SC 86; Titaghur Paper Mills Co. Ltd. vs. State of Orissa, (1983) 2 SCC 433; harbanslal Sahnia vs. Indian Oil Corpn. Ltd., (2003) 2 SCC 107; State of H.P. vs. Gujarat Ambuja Cement Ltd., (2005) 6 SCC 4 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ment/re-assessment of tax, imposition of penalty and for obtaining relief in respect of any improper orders passed by the Revenue Authorities, and the assessee could not be permitted to abandon that machinery and to invoke the jurisdiction of the High Court under Article 226 of the Constitution when he had adequate remedy open to him by an appeal to the Commissioner of Income Tax (Appeals). The remedy under the statute, however, must be effective and not a mere formality with no substantial relief. In Ram and Shyam Co. vs. State of Haryana, (1985) 3 SCC 267 this Court has noticed that if an appeal is from Caesar to Caesar s wife the existence of alternative remedy would be a mirage and an exercise in futility. The Supreme Court in Union of India vs. Satyavati Tandon- (2010) 8 SCC 110 has held that when a statutory forum is created by law for redressal of grievance and that too in a fiscal statute, a writ petition should not be entertained ignoring the statutory dispensation. Paras 31 32 of the report are worth quoting: 31. When a statutory forum is created by law for redressal of grievance and that too in a fiscal statute, a writ petition shoul ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Applying the ratio of all the aforesaid judgement, especially in Coastal Container Transporters Association, supra, we are inclined to hold that the present one cannot be said to be a case where the Assessing Officer completely lacked the jurisdiction in passing the reassessment order. It certainly cannot be said to be a case of inherent lack of jurisdiction. Aside of the fact whether or not the re-assessment order could have been legally passed, the appellants cannot be allowed to contend that such orders have been passed dehors the principles of natural justice. Admittedly, show cause notices were served on each of the appellants prior to passing of the impugned reassessment orders. The case of the appellants cannot also said to be fall in any category of exceptions including about breach of any fundamental right where the remedy available in the Act of 2003 under the scheme of the Statute cannot be considered as effective and efficacious, particularly in the face of the fact that similarly situated assessees in many such identical cases, including some of the petitioners, have already approached the appellate authority and first appellate authority and thereafter the Tax ..... X X X X Extracts X X X X X X X X Extracts X X X X
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