9911796707
TMI Blog2021 (5) TMI 450X X X X Extracts X X X X X X X X Extracts X X X X ..... t applicant replied to the notices in part. The revenue authority had served the show-cause notice on 13.11.2018. The writ applicant sought an adjournment for 15 days for hearing and accordingly, the matter was fixed for hearing on 04.12.2018 and on that day, in absence of the writ applicant, the matter was concluded finally and ex parte assessment order came to be passed. It is required to be noted that, the whole exercise undertaken by the respondent authority was faceless, in other words, everything to be submitted online as per the CBDT guidelines in a time bound manner. Thus it cannot be said that, the writ applicant had not been given a fair opportunity of hearing. Considering Section 264A of the Income Tax Act, which provides statutory alternative remedy against the impugned order of assessment, we decline to entertain this writ application as the writ applicant failed to make out his case for invoking the discretionary jurisdiction of this Court under Article 226 of the Constitution of India. Consequently, we relegate the writ applicant to avail the alternative remedy by way of filing statutory appeal before the competent authority. If the appeal is filed, the appella ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... A.Y. 2016-17 filed on 17.10.2016 declaring his total income at ₹ 24,24,300/-. The case was selected for scrutiny and the notices under Sectionss 143(2) and 142(1) of the Act were issued on 17.07.2017, 10.07.2018 and 27.08.2018 respectively and in response to the said notices, the writ applicant had complied in part, by way of submitting his written explanation and necessary material documents through e-compliance module on ITBA. The revenue had served the show-cause notice dated 13.11.2018 calling upon the writ applicant to show cause as to why the cash deposit of ₹ 71,92,000/- made in the bank account, which remains unexplained within the meaning of Section 68 of the Act, should not be treated as unexplained cash credit and added to his total income by invoking the provisions of Section 68 of the Act. 2.3 It is further the case of the writ applicant that, pursuant to the show-cause notice, he had sought time to file reply as his Chartered Accountant was out of India and accordingly, the matter was adjourned to 04.12.2018. According to the case of the writ applicant, on 04.12.2018, he along with his Chartered Accountant remained present before the respondent No.3 and ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n the part of the respondent is de hors the principles of natural justice, which requires to be set aside and alternatively, the matter may kindly be ordered to be remanded back for denovo proceedings. 6. On the other hand, Mrs. Kalpana Raval, the learned Sr. Standing Counsel appearing for the Revenue vehemently opposed the maintainability of the present writ application and contended that, the impugned order is challengeable before the Commissioner of Income Tax (Appeals), under Section 264A of the Act and therefore, the writ applicant ought to have exhausted the statutory remedy before resorting to the remedy under Article 226 of the Constitution of India. She, therefore, urged to dismiss this writ application. On merits, she contended that, the reassessment shall require to be adjudicated in time bound manner. Referring to the impugned order, she contended that the order itself shows that, during the entire assessment proceedings, the writ applicant had given sufficient opportunities to furnish the details/explanation for completion of assessment proceedings. She further submitted that, the entire assessment proceedings was adjudicated through online portal. Therefore, on the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ficacious alternate remedy was available to the assessee under the Act. 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 22 6despite 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 226of 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. 440-41, 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 of cases in which a liability may be established founded upon a statute. But there is a third class viz. where a liability not existing at common law is created by a statute which at the same time gives a special and particular remedy for e ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... , 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 judgments that the High Court will not entertain a petition under Article 226 of the Constitution if an effective alternative remedy is available to the aggrieved person or the statute under which the action complained of has been taken itse ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e cash deposit of ₹ 71,92,000/- made by the writ applicant in his bank account. The writ applicant replied to the notices in part. The revenue authority had served the show-cause notice on 13.11.2018. The writ applicant sought an adjournment for 15 days for hearing and accordingly, the matter was fixed for hearing on 04.12.2018 and on that day, in absence of the writ applicant, the matter was concluded finally and ex parte assessment order came to be passed. It is required to be noted that, the whole exercise undertaken by the respondent authority was faceless, in other words, everything to be submitted online as per the CBDT guidelines in a time bound manner. 11. In view of the aforesaid facts and considering the conduct of the writ applicant, we are of the view that, it cannot be said that, the writ applicant had not been given a fair opportunity of hearing. In this context, we may refer to and rely on the decision of Sahara India Real Estate Corporation Ltd. Vs. SEBI [(2013) 1 SCC 1], wherein, the Apex Court on the subject of principles of fairness observed as under: the rule of natural justice have limitations. The party concerned cannot always enjoy the advan ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
