9911796707
TMI Blog2021 (5) TMI 450X X X X Extracts X X X X X X X X Extracts X X X X ..... ws: 2.1 The writ applicant being an independent assessee seeks to challenge the scrutiny assessment order dated 05.12.2018 framed under Section 143 of the Income Tax Act, 1961 (hereinafter referred to as 'the Act' for short) for the A.Y. 2016-17, on the ground that, the impugned order is illegal, arbitrary, mala fide and having been passed in violation of the principles of natural justice and also violative of Article 14 of the Constitution of India, as before passing the impugned order, the respondent No.3 - Income Tax Officer, Surat, had not given reasonable opportunity of hearing as well as to lead the documentary evidence in support of his defense and to make effective representation. 2.2 According to the case of the writ applicant, the income of return for the A.Y. 2016-17 filed on 17.10.2016 declaring his total income at Rs. 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-compli ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n of India. He further submitted that, the assessment order has been passed ex-parte without giving any opportunity of being heard to the writ applicant. In this regard, he pointed out that, on the day when the matter was fixed, the writ applicant made a request for short adjournment to submit the reply as well as necessary documents, however, the request was refused and on the next day i.e. on 05.12.2019, when the writ applicant went to the office of the respondent no.3 with a request to accept the reply as well as the material documents as the order was yet to be passed, the respondent No.3 refused to accept the same and passed the impugned ex parte order. In this circumstances, the learned counsel for the writ applicant submitted that, the impugned action on 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... achinery for assessment/re-assessment for obtaining the relief in respect of any improper orders passed by the revenue authorities and the assessee could not be permitted to abandon that machinery and invoke the jurisdiction of the High Court under Article 226 of the Constitution of India when the assessee had adequate remedy open to him by an appeal to the Commissioner of the Income Tax (Appeals). The relevant paras 14 to 21 are reproduced herewith as under: "14. In the instant case, the only question which arises for our consideration and decision is whether the High Court was justified in interfering with the order passed by the assessing authority under Section 148 of the Act in exercise of its jurisdiction under Article 226when an equally efficacious 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... . of India, (2011) 14 SCC 337, this Court has held that where hierarchy of appeals is provided by the statute, party must exhaust the statutory remedies before resorting to writ jurisdiction for relief and observed as follows: "12. In Thansingh Nathmal v. Supdt. of Taxes, AIR 1964 SC 1419 this Court adverted to the rule of self-imposed restraint that the writ petition will not be entertained if an effective remedy is available to the aggrieved person and observed: (AIR p. 1423, para 7). "7. ... 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 226trench 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 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 Pap ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... (1999) 3 SCC 5;C.A. Abraham v. ITO, (1961) 2 SCR 765;Titaghur Paper Mills Co. Ltd. v. State of Orissa, (1983) 2 SCC 433; H.B. Gandhi v. Gopi Nath and Sons, 1992 Supp (2) SCC 312;Whirlpool Corpn. v. Registrar of Trade Marks, (1998) 8 SCC 1; Tin Plate Co. of India Ltd. v. State of Bihar, (1998) 8 SCC 272; Sheela Devi v. Jaspal Singh, (1999) 1 SCC 209 and Punjab National Bank v. O.C. Krishnan, (2001) 6 SCC 569) 18. In Union of India vs. Guwahati Carbon Ltd., (2012) 11 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 t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... otices issued thereon." 9. In view of the law laid down by the Apex Court in the case of Chhabil Dass Agrawal (supra), this Court cannot overlook the settled law that, ordinarily the writ petition under Article 226 of the Constitution of India ought not to be entertained, if an effective remedy is available, except in case if falls within the well defined exception as observed by the Apex Court in para 15 of the above judgment. 10. We take the notice of the undisputed fact that, the notices under Sections 143(2) and 142(1) of the Act were served upon the writ applicant on 17.08.2007, 10.07.2018 and 27.08.2018 respectively to submit the explanation and/or documents to explain the cash deposit of Rs. 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 exer ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
