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TMI Blog2019 (12) TMI 216X X X X Extracts X X X X X X X X Extracts X X X X ..... dmittedly the petitioner has not questioned the order rejecting the objections filed by the petitioner against reopening? HELD THAT:- In this case, admittedly, the petitioner has not questioned the order dated 29.09.2017, rejecting the objections. It is pertinent to note at this juncture that even in this writ petition, the challenge made is against notice under Section 148 and the order of assessment. In between, the order rejecting the objection stares at the petitioner, which was not questioned. No doubt, the petitioner, while questioning the order of assessment, can also question the reopening. But the forum of such change is relevant to be noted at this juncture - The petitioner has chosen to challenge the notice under Section 148 and the consequential assessment order by filing the present writ petition. The assessee has not chosen to challenge the rejection order, on the other hand, they participated in the assessment proceedings - the reasons for reopening and the consequential order rejecting the objections against those reasons now got merged with the subsequent order of assessment and therefore, it would not be proper for this Court to go into the question of reopening a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... need to be raised only before the next fact finding Authority viz., Appellate Authority by filing a regular appeal, which in turn, shall consider the same and pass orders on merits and in accordance with law. This writ petition is disposed of, by directing the petitioner to file regular appeal against the impugned order of assessment before the concerned Appellate Authority within a period of four weeks from the date of receipt of a copy of this order. X X X X Extracts X X X X X X X X Extracts X X X X ..... ing is made after the expiry of four years from the end of the assessment year 2010-11. The notice under Section 148 is served after the end of the four years from the end of the assessment year 2010-11. Since the petitioner had truly and fully disclosed all material facts necessary for the purpose of assessment in the course of original assessment, the limitation of four years as provided in the first Proviso to Section 147 is attracted. The reasons provided by the first respondent for reopening have not been drawn on the basis of any fresh material on record. The assessing Officer merely claimed the return of income to be invalid due to typographical error made by the petitioner. The second respondent rejected the objections of the petitioner against reopening stating that the error with respect to the date of audit report is not typographical error but amounted to assessee not furnishing truly and fully all the materials. The reopening is one which is based on same materials that were present at the time of original assessment. Therefore, the same amounts to change of opinion. Proceedings under Section 147 of the Act on the basis of opinion of the Revenue Audit party without in ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e was also passed on 29.09.2017 meeting all averments and the issue being carry forward of loss requiring no further details, order under Section 143(3) read with Section 147 was made on 12.12.2017 in accordance with the reasons provided to the petitioner and also in conformity with the conditions found satisfied by the higher authorities. Hence, there had been no violation of natural justice and fair play. The condition of reopening after four years from the end of the Assessment Year 2010- 11 had been found satisfied and the notice under Section 148 has been issued i.e. before the end of 6 years, on 31.03.2017, which is well within the condition for reopening. It is wrong to say that all material facts necessary for assessment had been truly and fully disclosed, when the material fact of date of audit report was a false disclosure in the return of income. In the petitioner's case, it is an issue of wrong input in return of income by incorporating a bogus date for completion of Audit Report under Section 44AB, which has no connection with disclosure of materials. It is also submitted that the issue to be considered is whether the representation in the return about the Audit re ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n 29.09.2010, as the date of audit report, as an adhoc date. However, though the Audit Report was made on 12.01.2011 and when a revised return is filed on 05.02.2011, once again the date of Audit Report was referred to as 29.09.2010. However providing wrong date of audit report cannot be a reason to reopen the assessment, when the petitioner has placed all the material facts and relevant documents before the Assessing Officer at the time of original assessment. On 11.07.2012, the Assessing Officer called for documents and the petitioner filed the Audit Report before the Assessing Officer on 27.08.2012. When a notice under Section 148 dated 31.03.2017 was issued, the petitioner filed return in response to such notice, however, again by making the same mistake regarding the date of Audit Report, which is not intentional and on the other hand, by way of inadvertence. The Assessing Officer sought to reopen the assessment by claiming that the petitioner had given false information regarding Audit Report and that the Audit Report filed was belated one. The Assessing Officer also seeks to reopen the assessment for levying penalty, which cannot be a ground for reopen. There is no allegat ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... , h) (2017) 88 Taxmann 256 (Mad), Madras Suspensions Ltd., vs Deputy Commissioner of Income Tax; i) (2018) 97 Taxmann.com 179 (Mad), Principal Commissioner of Income Tax-6 vs. Santech Solutions (P.) Ltd. 6. Per contra, Mrs.Hema Muralikrishnan, learned Senior Standing Counsel for the respondents submitted as follows: i) The writ petition itself is not maintainable, since as against the impugned assessment order, a statutory appellate remedy is available to the petitioner and therefore, without exhausting such remedy, the petitioner is not justified in filing the present writ petition. Challenge made in this writ petition is against 148 notice and the consequential order of assessment. The petitioner has not questioned the order rejecting the objections filed by the petitioner against the reasons for reopening. The case laws relied on by the petitioner in support of the maintainability of the writ petition are factually distinguishable and thus, not applicable to the present case. The recent decision of the Apex Court reported in 2018(3) SCC 85, State Bank of India vs. K.C.Mathew, is relied on against the maintainability. None of the ingredients referred to in 2014(1)SCC 603, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... .03.2014, followed by a notice of demand under Section 157 of the said Act dated 14.03.2014. After a period of three years, the Assessing Officer issued notice under Section 148 of the Income Tax Act, 1961, to reopen the assessment on the reason that the Assessee's income chargeable to tax for the relevant assessment year has escaped assessment. Accordingly, the Assessing Officer called upon the petitioner to file a return in the prescribed form. In response to the said notice, the assessee filed return dated 21.04.2017. Even while filing the said return pursuant to notice under Section 148, the petitioner referred the date of audit report as 29.09.2010. The petitioner through communication dated 26.04.2017, requested the Assessing Officer to provide with the reasons recorded for reopening the assessment. Consequently, the Assessing Officer through communication dated 15.06.2017, furnished the reasons for reopening the assessment, which reads as follows: " The assessee filed the return of income for the A.Y.2010-11 on 08/10/2010 declaring a loss or ₹ 10,93,69,356. Subsequently, the case was selected for scrutiny and assessment was completed on 13.03.2014 accepting ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ks or other evidence before the Assessing Officer will not necessarily amount to disclosure within the meaning of the relevant provision. 10. The Assessee through the communication dated 01.08.2017, filed their objections against the reasons for reopening. It is their contention that there is no new material available to reopen the assessment and that the mere change in opinion cannot justify reopening of the assessment. It is also contended by the assessee that non furnishing of audited accounts and audit report under Section 44AB does not render the return invalid. It is their further contention that the return of income cannot be regarded as invalid in view of Section 292B of the said Act. However, the assessee has admitted that the date of audit report was inadvertently mentioned as 29.09.2010, as against the actual date viz., 12.01.2011. According to the assessee, it is purely a clerical error made without any malafide and however, it does not make the total income or tax liability of the assessee. The Assessing Officer, after considering the objections filed by the assessee against reopening, passed a detailed order on 29.09.2017, rejected the objection and found that the re ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f in so far as the process of reopening is concerned, commencing from the issuance of notice under Section 148 to passing an order either accepting or rejecting the objections raised against the reopening. Depending upon the order passed by the Assessing Authority against the objections raised on the reasons for reopening, it is open to the assessee to work out their remedy either to challenge the said order immediately before the Assessing Officer goes to the next step of issuing notice under Section 143(2), calling upon the assessee to participate in the assessment proceedings or to participate in the assessment proceedings and allow the Assessing Officer to pass revised order of assessment. 14. In this case, admittedly, the petitioner has not questioned the order dated 29.09.2017, rejecting the objections. It is pertinent to note at this juncture that even in this writ petition, the challenge made is against notice under Section 148 and the order of assessment. In between, the order rejecting the objection stares at the petitioner, which was not questioned. No doubt, the petitioner, while questioning the order of assessment, can also question the reopening. But the forum of suc ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ifest injustice or abuse of the process of the court. In the present case, the facts are not in dispute. The discretionary jurisdiction under Article 226 is not absolute but has to be exercised judiciously in the given facts of a case and in accordance with law. The normal rule is that a writ petition under Article 226 of the Constitution ought not to be entertained if alternate statutory remedies are available, except in cases falling within the well defined exceptions as observed in Commissioner of Income Tax and Others vs. Chhabil Dass Agarwal, 2014 (1) SCC 603, as follows: "15. Thus, while it can be said that this Court has recognised 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 5 order has been passed in total violation of the principles of natural justice, the proposition laid down in Thansingh Nathmal case, Titaghur Paper Mills case and other similar judgments that the High Court will not entertain a petition under Arti ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rably failed to challenge the reopening at the appropriate time. In fact, I myself considered the issue in a case reported in (2018) 99 taxmann.com 340 (Mad), A.Sridevi vs. ITO and found that providing certain materials earlier cannot be equated with the disclosure of true and full material facts necessary for assessment, unless such material was already placed on record at the time of filing the original return itself. The above said decision was confirmed by the Division Bench of this Court reported in (2018) 100 taxmann.com 434 (Mad), A.Sridevi vs. ITO. 19. The admitted fact remains that the assessee has quoted a wrong date viz., 29.09.2010 as the date of audit report not only in the original return but also in the revised return before reopening and also in the return filed in response to the notice issued under Section 148. The assessee claims that it is an inadvertent mistake or clerical mistake. Assuming that it is a mistake, committing the same mistake again and again, prima facie, does not appear to this Court as inadvertent, when the assessee was fully aware of the fact that the date of audit report is 12.01.2011 and not 29.09.2010, as claimed in the returns filed as st ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... shable, more particularly, when some of the cases are against very 148 notice at the first instance and some of the cases, where the assessee therein had gone through the regular statutory appellate remedy. Therefore, when this Court finds that the petitioner has to avail such alternative appellate remedy and raise all the points, it is not necessary to deal with facts and circumstances of each case laws relied on by the petitioner for the present. 20. Accordingly, this writ petition is disposed of, by directing the petitioner to file regular appeal against the impugned order of assessment before the concerned Appellate Authority within a period of four weeks from the date of receipt of a copy of this order. It is open to the petitioner to raise all the contentions raised in this writ petition before the Appellate Authority in the said appeal. The Appellate Authority shall consider such appeal on its own merits and pass orders in accordance with law, including the challenge made by the petitioner against the reopening. Any of the observations made in this writ petition shall not influence the mind of the Appellate Authority to decide the appeal on its own merits and in accordance ..... X X X X Extracts X X X X X X X X Extracts X X X X
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