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TMI Blog2021 (11) TMI 749X X X X Extracts X X X X X X X X Extracts X X X X ..... nt controlled with opaque ownership (97.99% share holding being subscribed by a Cayman Island Controlled entity, which has been allowed 'Foreign Direct Investment' (FDI) in 100% wholesale sector). All these turn heavily on facts and therefore, this is also another reason to say that these are clearly matters for legal drill in the nature of an appeal and does not warrant interference in writ jurisdiction. If there is an error in holding that FEMA norms have not been followed or that the business is not approved under FEMA, these are matters which can be corrected in an appeal. All this turns heavily on facts and on merits of the matter. Excess jurisdiction as an illustration is a case/situation where an Authority exercises jurisdiction which is not vested in it. In this case, if the respondents have levied any fine or have mulcted the writ petitioner with any of the consequences for FEMA violation under FEMA that may well qualify as a case of excess jurisdiction. The consequences under FEMA do not form subject matter of impugned order. If there is no violation of FEMA, it is well open to the writ petitioner to canvass the same in a statutory appeal. Therefore, this is no ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... petition for computing this 30 days (by resorting under Section 14 of The Limitation Act, 1963), the same can be considered by Appellate Authority on its own merits and in accordance with law. This order will neither impede nor serve as an impetus in such a legal drill. - W.P.No.23219 of 2021 And WMP.No.24518 of 2021 - - - Dated:- 1-11-2021 - THE HONOURABLE MR.JUSTICE M.SUNDAR For Petitioner: Mr.Vijayaraghavan, M/s.Subbaraya Aiyar Padmanabhan And Ramamani (Law Firm) For Respondents: Ms.Hema Muralikrishnan, Senior standing counsel ORDER Captioned main writ petition has been filed assailing an assessment order dated 28.09.2021 made under Section 143(3) read with 144B of 'the Income-tax Act, 1961 (43 of 1961)' [hereinafter 'IT' Act for the sake of brevity, convenience and clarity] pertaining to assessment year 2018-19 qua writ petitioner. 2. Mr.Vijayaraghavan of M/s.Subbaraya Aiyar Padmanabhan Ramamani [Law firm], who was before this virtual Court on behalf of writ petitioner, in his campaign against the impugned order made submissions a broad summation of which is as follows: 1) Two additions namely 'Inter Corporate Deposits' ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... payment qua high seas sales being made in INR being treated as external commercial borrowing, indirect foreign investment and FDI in 100% wholesale sector loans extended in INR has been held to be not a business approved and not in the confirmity with FEMA norms. The arguments that the norms of FEMA have not been set out with specificity or required approval details have not been set out with specificity in the impugned order are all clearly arguments in the nature of an appeal qua impugned order i.e., not arguments compelling interference in writ jurisdiction. To be noted, impugned order i.e., assessment order proceeds on the basis that Xangbo is non resident owned, non resident controlled with opaque ownership (97.99% share holding being subscribed by a Cayman Island Controlled entity, which has been allowed 'Foreign Direct Investment' (FDI) in 100% wholesale sector). All these turn heavily on facts and therefore, this is also another reason to say that these are clearly matters for legal drill in the nature of an appeal and does not warrant interference in writ jurisdiction. 8. This takes this Court to the next point that turns on FEMA norms. The norms of FEMA not be ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... pugned order has been made. 10. This takes this order to the alternate remedy rule i,e, availability of alternate remedy which was projected by learned Revenue counsel. Learned Revenue counsel submitted that statutory appeal is available to the writ petitioner against the impugned order and that statutory appeal is under Section 246A of IT Act. Learned Revenue counsel also pointed out that there is no pre deposit condition qua 246A of IT Act, but this was disputed by learned counsel for writ petitioner by saying that there may not be a pre deposit condition, but if one seeks a stay of impugned order, deposit of 20% of the demand is made imperative for grant of stay in the light of circulars that are operating now. This Court does not propose to go into this controversy as to whether the circular would act as pre deposit condition as this Court has come to the conclusion that this is not a fit case for interference in writ jurisdiction and the writ petitioner has to be relegated to the alternate remedy of statutory appeal. Once the writ petitioner chooses to avail the alternate remedy under Section 246A of IT Act, it follows as an inevitable sequitur that limitation and pre depos ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s: '10. In Satyawati Tondon the High Court had restrained further proceedings under Section 13(4) of the Act. Upon a detailed consideration of the statutory scheme under the SARFAESI Act, the availability of remedy to the aggrieved under Section 17 before the Tribunal and the appellate remedy under Section 18 before the Appellate Tribunal, the object and purpose of the legislation, it was observed that a writ petition ought not to be entertained in view of the alternate statutory remedy available holding: (SCC pp.123 128, Paras 43 55) 43. Unfortunately, the High Court overlooked the settled law that the High Court will ordinarily not entertain a petition under Article 226 of the Constitution if an effective remedy is available to the aggrieved person and that this Rule applies with greater rigour in matters involving recovery of taxes, cess, fees, other types of public money and the dues of banks and other financial institutions. In our view, while dealing with the petitions involving challenge to the action taken for recovery of the public dues, etc., the High Court must keep in mind that the legislations enacted by Parliament and State Legislatures for recove ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... or (iv) a challenge to the vires of the statute or delegated legislation. 12 In the present case, none of the above exceptions was established. There was, in fact, no violation of the principles of natural justice since a notice was served on the person in charge of the conveyance. In this backdrop, it was CA 5121/2021 7 not appropriate for the High Court to entertain a writ petition. The assessment of facts would have to be carried out by the appellate authority. As a matter of fact, the High Court has while doing this exercise proceeded on the basis of surmises. However, since we are inclined to relegate the respondent to the pursuit of the alternate statutory remedy under Section 107, this Court makes no observation on the merits of the case of the respondent.' 15. From the narrative thus far, this Court is clear in its mind that none of the exceptional circumstances, which have been culled out by Hon'ble Supreme Court are attracted in the case on hand. To be noted, excess jurisdiction point urged has been negatived by this Court and the same has been delineated supra elsewhere in this order. 16. In the light of the discussion and dispositive reasoning set ..... X X X X Extracts X X X X X X X X Extracts X X X X
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