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TMI Blog2020 (1) TMI 356X X X X Extracts X X X X X X X X Extracts X X X X ..... en a statutory forum is created by law for redressal of grievance, a writ petition should not be entertained ignoring the statutory dispensation. But, such principles, in a given case, may be given a go bye, if the Court is convinced that on the face of it, the impugned order is not sustainable in law. We are of the view that we should look into the matter on merits while overruling the preliminary objection raised on behalf of the Revenue. We are convinced that the impugned order passed by the Assessing Officer is not sustainable in law. We once again fall back on the directions issued by the Appellate Tribunal. The directions are plain and simple. The Tribunal takes the view that Section 44AD of the Act is not applicable. It directed the assessee to attend the assessment proceedings and justify its case on lower rate of profit in accordance with its books of account. The Assessing Officer was directed to verify the same and decide the issue a fresh (the Tribunal says that decide the issue a fresh means the issue with regard to the claim of lower rate of profit). If the appeal would have been dismissed without there being any direction of remitting the matter to the Assessing Offi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ₹ 11,16,785/( Rupees Eleven Lakh Sixteen Thousand Seven Hundred Eighty Five only) and the same was processed under Section 143(1) of the Act. 2.2 The case of the assessee came to be selected for scrutiny and various details were called for by the Assessing Officer. In such circumstances, the best judgement assessment came to be framed under Section 144 of the Act vide order dated 8th December 2006 assessing the income of the assessee at ₹ 1,25,93,920/( Rupees One Crore Twenty Five Lakh Ninety Three Thousand Nine Hundred Twenty only) in view of the provisions of Section 44AD of the Act. 2.3 The writ applicant challenged the assessment order dated 8th December 2006 by preferring an appeal before the CIT (Appeals). The said appeal came to be dismissed by the CIT(Appeals) vide order dated 31st December 2007. 2.4 The writ applicant, thereafter, thought fit to carry the matter before the Income Tax Appellate Tribunal, but, by the time, the writ applicant could prefer the appeal, there was already delay of 329 days in filing such appeal. The Income Tax Appellate Tribunal declined to condone the delay. In such circumstances, the writ applicant came before this Court by f ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r condonation of delay along with the affidavit. In our considered opinion, the assessee prevented by reasonable and sufficient cause for not filing the appeal on time. Therefore, in the interest of Justice and fair play, the delay is condoned. 7. Coming to the merits of the case, we find that the assessment order was made ex parte u/s. 144 of the Act which was confirmed by the ld. CIT(A). 8. A perusal of the order of the authorities below shows that because of non attendance by the assessee, the A.O. proceeded by applying rate of 8% following guidelines of Section 44AD of the Act. 9. In our considered opinion and the understanding of the facts in issue, since e return was accompanied with Audit Report u/s 44AB of the Act provisions of Section 44AD are not applicable. 10. Therefore, in the interest of justice, we deem it fit to restore the issue to the files of the A.O. The Assessee is directed to attend the assessment proceedings and justify its claim of lower rate of profit in accordance with its books of accounts. The A.O. is directed to verify the same and decide the issue afresh after giving a reasonable and fair opportunity of being heard to the assessee. 11 In ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... NS ON BEHALF OF THE WRIT APPLICANT: 7 Mr. Hemani, the learned senior counsel assisted by Ms. Vaibhavi K. Parikh, the learned counsel appearing for the writ applicant vehemently submitted that the impugned order passed by the Assessing Officer is without jurisdiction. The learned senior counsel would submit that what cannot be done directly could not have been done indirectly. It is submitted that the order of the Tribunal remitting the matter, more particularly, the last part of the direction is very specific and clear. According to the learned senior counsel, the Assessing Officer was asked to look into the claim of the assessee with regard to lower rate of profit and while undertaking such exercise, the Assessing Officer appears to have travelled much beyond the issue upon which he was asked to look into. This is the principal and the only argument of the learned senior counsel while assailing the order passed by the Assessing Officer. 8 In such circumstances referred to above, the learned senior counsel appearing for the writ applicant prays that there being merit in this petition, the same be allowed and the impugned order be quashed and set aside and the Assessing Officer ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... has an alternative efficacious remedy of preferring an appeal before the CIT (Appeals). In this context, we may refer to a decision of the Supreme Court in the case of Commissioner of Income Tax vs. Chhabil Dass Agarwal [2013] 357 ITR 357 (SC). We rely upon the observations made in paras 15 to 20. The same reads thus: "15. Before discussing the fact proposition, we would notice the principle of law as laid down by this Court. It is settled law that nonentertainment of petitions under writ jurisdiction by the High Court when an efficacious alternative remedy is available is a rule of selfimposed 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 22 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... lip; The High Court does not therefore act as a court of appeal against the decision of a court or tribunal, to correct errors of fact, and does not by assuming jurisdiction under Article 226 trench upon an alternative remedy provided by statute for obtaining relief. Where it is open to the aggrieved petitioner to move another tribunal, or even itself in another jurisdiction for obtaining redress in the manner provided by a statute, the High Court normally will not permit by entertaining a petition under Article 226 of the Constitution the machinery created under the statute to be bypassed, and will leave the party applying to it to seek resort to the machinery so set up." 13. In Titaghur Paper Mills Co. Ltd. v. State of Orissa, (1983) 2 SCC 433 this Court observed: (SCC pp. 44041, para 11) "11. … It is now well recognised that where a right or liability is created by a statute which gives a special remedy for enforcing it, the remedy provided by that statute only must be availed of. This rule was stated with great clarity by Willes, J. in Wolverhampton New Waterworks Co. v. Hawkesford, 141 ER 486 in the following passage: (ER p. 495) '… There are three classes ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... SCC 651, this Court has reiterated the aforesaid principle and observed: "8. Before we discuss the correctness of the impugned order, we intend to remind ourselves the observations made by this Court in Munshi Ram v. Municipal Committee, Chheharta, (1979) 3 SCC 83. In the said decision, this Court was pleased to observe that: (SCC p. 88, para 23). "23. … when a revenue statute provides for a person aggrieved by an assessment thereunder, a particular remedy to be sought in a particular forum, in a particular way, it must be sought in that forum and in that manner, and all the other forums and modes of seeking [remedy] are excluded."" 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 justice, the proposition laid down in Thansingh Nathmal case, Titagarh Paper Mills case and other similar ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... uling the preliminary objection raised on behalf of the Revenue. 15 We are convinced that the impugned order passed by the Assessing Officer is not sustainable in law. We once again fall back on the directions issued by the Appellate Tribunal. The directions are plain and simple. The Tribunal takes the view that Section 44AD of the Act is not applicable. It directed the assessee to attend the assessment proceedings and justify its case on lower rate of profit in accordance with its books of account. The Assessing Officer was directed to verify the same and decide the issue a fresh (the Tribunal says that "decide the issue a fresh" means the issue with regard to the claim of lower rate of profit). 16 Mr. Hemani, the learned senior counsel appearing for the writ applicant invited our attention to a decision of the Supreme Court in the case of MCorp Global P. LTD vs. Commissioner of Income Tax [2009] 309 ITR 434 (SC) wherein the Supreme Court has observed as under: "In the case of Hukumchand Mills Ltd. v. CIT reported in [1967] 63 ITR 232 this Court has held that under section 33(4) of the Income Tax, 1922 (equivalent to section 254(1) of the 1961 Act), the Tribunal was not aut ..... X X X X Extracts X X X X X X X X Extracts X X X X
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