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TMI Blog2022 (10) TMI 129X X X X Extracts X X X X X X X X Extracts X X X X ..... -College has already filed return in Form ITR- 7 on 30.04.2022 mentioning therein that it has been filed under Section 139(4A) of the IT Act for the Assessment Year 2015-16 after receipt of notice dated 31.03.2022 under Section 148, the Assessing Officer is required to verify the books of account of the relevant year and examine any other evidence that may be allowed to be adduced by the petitioner-College with reference to the materials available in record. While doing so, he will confront adverse material, if any, he wishes to utilize against the assessee- petitioner and record statement with regard to such verification. Needless to say that the petitioner shall be allowed reasonable opportunity for stating its case, which shall be considered by the Assessing Officer in the order of assessment including the grounds of challenge against the Order dated 31.03.2022 passed under Section 148A(d). The petitioner for the purpose of assessment may participate in the proceeding initiated under Section 148 of the IT Act and no unnecessary adjournment shall be granted. The writ petition challenging the Notice issued under Section 148 and the Order dated 31.03.2022 passed under Section 14 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... owing material particulars facilitating filing of show-cause by the petitioner: You have deposited cash amounting to Rs.69,23,128/- in your bank account maintained with State Bank of India Corporate Centre during the Financial Year 2014-15 relevant to assessment year 2015-16. You have also received interest amount of Rs.1,77,782/- and Rs.32,578/- from the deposit accounts maintained with Tamilnadu Mercantile Bank Limited and State Bank of India respectively during the said assessment year. However, you have failed to file your Income Tax Return for the relevant A.Y. 2015-16. Therefore, you are required to show cause as per provision of Section 148A(b) of the Act, that why such amount of Rs.71,33,488/- (69,23,128 + 1,77,782 + 32,578) will not be treated as your escaped income as per Section 147 of the Income Tax Act, 1961 for the A.Y. 2015-16 and why notice under Section 148 will not be issued to you for the relevant assessment year. 2.1. Responding to aforesaid notice, a reply dated 30.03.2022 was filed by the petitioner-assessee which inter alia contained as follows: Since there is no taxable income being no liability for payment of tax, the law provides for Assesse ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... g return with reference to Section 139(4C)(e) for Assessment Years prior to 2016-17. Amplifying such a contention, Sri Mohanty argued that since the expression sub-clause (iiiab) has been inserted in clause (e) of sub-section (4C) of Section 139 with effect from 01.04.2016 by virtue of the Finance Act, 2015, there was no requirement to furnish return of income of the educational institution like the petitioner-College, being exempted in terms of Section 10(23C)(iiiab) in respect of period prior to Assessment Year 2016-17. Therefore, it is submitted that the petitioner was not required to file return for the Assessment Year 2015-16. 3.1. A Certificate dated 28.01.2021 issued by the Secretary of National Commission for Minority Educational Institutions, Ministry of Human Resources Development, Government of India, is brought to the notice of this Court to establish that the petitioner-College is minority educational institution. Said certificate is to the following effect: This is to certify that by the order dated 10th day of September, 2020 passed by the National Commission for Minority Educational Institutions, New Delhi in case No.1668 of 2012 (Stewart Science College, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... utions established and administered by the minorities who have retired on or after the 1st April, 1982 on attaining the age of 60 years are not entitled to retirement benefits. This causes hardship to them as their couterparts in other aided educational institutions retiring on or after 1st April, 1982 are getting the retirement benefits provided in the said Retirement Benefit Rules of 1981. 3. After careful consideration, Government has been pleased to decide that the provisions in the above rules and executive institutions issued thereunder regarding the procedure of payment of retirement benefits under the said rules may be made applicable mutatis mutandis to the educational institutions established and administered by minorities which are covered by the Scheme of Direct Payment of grants-in-aid with effect from the 1st April, 1982, provided that, the employees are retired on attaining the age of 60 years. Order- Ordered that the Resolution be published in the Orissa Gazette for general information and copies thereof be sent to all concerned. By order of the Governor S.M. Patnaik Secretary to Government 3.3. Enclosing copies of Letter No.5033 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... issue of notice under Section 148, reads thus: 148A. Conducting inquiry, providing opportunity before issue of notice under Section 148.- The Assessing Officer shall, before issuing any notice under Section 148,- (a) conduct any enquiry, if required, with the prior approval of specified authority, with respect to the information which suggests that the income chargeable to tax has escaped assessment; (b) provide an opportunity of being heard to the assessee, with the prior approval of specified authority, by serving upon him a notice to show cause within such time, as may be specified in the notice, being not less than seven days and but not exceeding thirty days from the date on which such notice is issued, or such time, as may be extended by him on the basis of an application in this behalf, as to why a notice under Section 148 should not be issued on the basis of information which suggests that income chargeable to tax has escaped assessment in his case for the relevant assessment year and results of enquiry conducted, if any, as per clause (a); (c) consider the reply of assessee furnished, if any, in response to the show-cause notice referred ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... issued under Section 148A clearly demonstrates that the Assessing Authority had in possession of information about deposit of cash in the banks by the petitioner- College during the Financial Year 2014-15. Section 148A uses the word information which triggers action by the Assessing Officer. The connotation of information in the context of reopening of assessment has succinctly been laid down in the case of Larsen Toubro Limited Vrs. State of Jharkhand, (2017) 103 VST 1 (SC) (Paragraphs 21, 22 27) = (2017) 13 SCC 780 which is as follows: 21. It is also pertinent to understand the meaning of the word information in its true sense. According to the Oxford Dictionary, information means facts told, heard or discovered about somebody/something. The Law Lexicon describes the term information as the act or process of informing, communication or reception of knowledge. The expression information means instruction or knowledge derived from an external source concerning facts or parties or as to law relating to and/or having a bearing on the assessment. We agree that a mere change of opinion or having second thought about it by the competent authority on the same set ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... basis of which the earlier assessing authority passed the order and the successor assessing authority proceeded, were same. *** 5.3. In the present case, it is admitted fact that the petitioner-College has deposited cash of Rs.69,23,128/- with the State Bank of India, Corporate Centre and received interest amounting to Rs.1,77,782/- and Rs.32,578/- from the deposit accounts maintained with Tamilnadu Mercantile Bank Ltd. While explaining by way of reply dated 30.03.2022 to the notice dated 22.03.2022, the petitioners submitted before the Authority concerned that cash amounting to Rs.69,23,128/- is the money received from students, but the same is stated to have been exempted under Section 10(23C)(iiiab) of the IT Act. 5.4. Provisions of Section 10(23)(iiiab) so far as is relevant for the present purpose is extracted hereunder: 10. Incomes not included in total income.- In computing the total income of a previous year of any person, any income falling within any of the following clauses shall not be included- *** (23C) any income received by any person on behalf of- *** (iiiab)any other educational institution existing solely for educational ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ent of escaped income on opining to initiate proceeding under Section 148 disclosing the reason by passing Order dated 31.03.2022 under Section 148A. 5.8. The action based on the subjective opinion or satisfaction can judicially be reviewed first to find out the existence of the facts or circumstances on the basis of which the authority is alleged to have formed the opinion. It is true that ordinarily the court should not inquire into the correctness or otherwise of the facts found except in a case where it is alleged that the facts which have been found existing were not supported by any evidence at all or that the finding in regard to circumstances or material is so perverse that no reasonable man would say that the facts and circumstances exist. The courts will not readily defer to the conclusiveness of the authority s opinion as to the existence of matter of law or fact upon which the validity of the exercise of the power is predicated. The doctrine of reasonableness thus may be invoked. Where there are no reasonable grounds for the formation of the authority s opinion, judicial review in such a case is permissible. When we say that where the circumstances or material or sta ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... action but has been used only to avoid embarrassment or wreck personal vengeance, then the power will be deemed to have been exercised improperly. The grounds which are relevant for the purpose for which the power can be exercised have not been considered or grounds which are not relevant and yet are considered and an order is based on such grounds, then the order can be attacked as invalid and illegal. On the same principle, the administrative action will be invalidated if it can be established that the authority was satisfied on the wrong question. The aforesaid principles of exercise of power vis- -vis validity of exercising power has been discussed elaborately by the Hon ble Supreme Court of India in Amarendra Kumar Pandey Vrs. Union of India, 2022 SCC OnLine SC 881. 5.9. Proceeding is frequently used to denote a step in an action and obviously it has that meaning in such phrases as proceeding in any cause or matter. When used alone, however, it is in certain statutes to be construed as synonymous with or including action. Reference may be had to Halsbury s Laws of England, Vol. 1, 3rd Edition, page 6. 5.10. The term proceeding is a very comprehensive term and gen ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of an action, including the pleadings and Judgment. The term proceeding would only mean a legal process taken to enforce the rights. 5.12. The dictionary meaning of the word proceeding is the institution of a legal action, any step taken in a legal action . In a general sense, the form and manner of conducting juridical business before a Court or judicial officer. Regular and orderly progress in form of law, including all possible steps in an action from its commencement to the execution of judgment. Term also refers to administrative proceedings before agencies, tribunals, bureaus or the like. See: Most Rev. P.M.A. Metropolitan Others Vrs. Moran Mar Marthoma Another, 1995 Supp (4) SCC 286 = AIR 1995 SC 2001. 5.13. In P.L. Kantha Rao Vrs. State of AP, AIR 1995 SC 807 = (1995) 2 SCC 471 , it is stated that the word proceeding would depend upon the scope of the enactment wherein the expression is used with reference to a particular context where it occurs. It may mean a course of action for enforcing legal right. In the journey of litigation, there are several stages, one of which is the realisation of the judicial adjudication which attained finality. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... er on its own motion or otherwise, after the expiry of a period of one year from the date on which the contempt is alleged to have been committed. In the Pallav Sheth Vrs. Custodian, (2001) 107 Comp Cas 76 (SC) = (2001) 7 SCC 549 it has been held that in the case of suo motu proceedings, contempt proceeding must be initiated by the Court by issuing a notice and in other cases initiation can only be by a party filing an application. Under Section 20 of the Contempt of Courts Act, 1971 action can be initiated, either by filing an application or by the Court issuing notice suo motu, within a period of one year from the date on which the contempt is alleged to have been committed. 5.19. In Kishan Lal Co. Vrs. Additional Commissioner of Commercial Tax, (2017) 102 VST 343 (Chhatisgarh) = 2017 SCC OnLine Chh 584 the initiation of proceeding has been described in the following manner: 11. The word initiate or initiation has not been defined in the Act. Since it has not been defined in the Act, it would be appropriate to refer to the dictionary meaning of the word initiate . In Webster s Third New International Dictionary, the word initiate has been defined as to be ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n the information received. Once there is application of mind by the revisional authority for suo motu proceeding or on the basis of the information received and he decides to issue notice as contemplated under Rule 61 of the Chhatisgarh Value Added Tax Rules, then the exercise of initiation is complete and initiation cannot be said to be made only when the notice is received under Rule 61 by the assessee. 5.20. Perusal of record reveals that after passing of the Order dated 31.03.2022 under Section 148A(d) and issue of notice for assessment under Section 148 of the IT Act, having filed return under Section 139(4A) in Form ITR-7 on 30.04.2022 for the Assessment Year 2015-16 along with Audit Report (Annexure-4 series), the petitioner has participated in the proceeding and surrendered to the jurisdiction of the Assessing Authority-Income Tax Officer, Ward 1(1), Cuttack before whom said return is stated to have been filed. 5.21. In the above premises, it is unwarranted to show indulgence in matter pertaining to the Order dated 31.03.2022 passed under Section 148A(d) of the IT Act in exercise of extraordinary jurisdiction under Article 226 of the Constitution of India. Acceding ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... mmission or infrastructure debt fund or mutual fund or securitization trust or venture capital company or venture capital fund is assessable, without giving effect to the provisions of Section 10, exceeds the maximum amount which is not chargeable to income-tax, furnish a return of such income of the previous year in the prescribed form and verified in the prescribed manner and setting forth such other particulars as may be prescribed and all the provisions of this Act shall, so far as may be, apply as if it were a return required to be furnished under sub- section (1). (4D) Every university, college or other institution referred to in clause and clause of sub- section of Section 35, which is not required to furnish return of income or loss under any other provision of this section, shall furnish the return in respect of its income or loss in every previous year and all the provision s of this Act shall, so far as may be, apply as if it were a return required to be furnished under sub- section (1). [Emphasis supplied] 6.2. Filing return under Section 139(4A) is needed by every person who receives an income derived from the property he ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rom 1st June, 2002, representations have been received seeking clarification whether the prescribed self-declaration under the said section can be submitted by entities exempt from tax under Section 10 even if the payments referred to in sub-section (1A) to be made to them exceed the threshold limit not subject to tax. 2. This matter has been examined by the Board. It has been decided that in case of those funds or authorities or Boards or bodies, by whatever name called, whose income is unconditionally exempt under Section 10 of the Income-tax Act and who are statutorily not required to file return of income as per Section 139 of the Income-tax Act, there would be no requirement for tax deduction at source since their income is anyway exempt under the Income-tax Act. The institutions whose income is unconditionally exempt under Section 10 and who are statutorily not required to file return of income as per the provisions of Section 139 are : (i) local authority , as referred to in the Explanation to clause (20); (ii) Regimental Fund or Non-public Fund established by the armed forces of the Union referred to in clause (23AA); (iii) Fund, by whatever name called ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e Government. 6.6. While considering the claim for exemption, the aforesaid conditions are required to be dealt with by the fact-finding authority on the evidence(s) adduced by the assessee/claimant. Whereas such exemption is subject to satisfaction of certain conditions, it cannot be said that the exemption envisaged under Section 10(23C)(iiiab) is generally exempted. 6.7. This Court in the case of Atlas Engineering Works (Pvt.) Ltd. Vrs. Commissioner of Commercial Taxes and others, 2000 SCC OnLine Ori 296 = (2000) 120 STC 588 in the context of general exemption as envisaged under Section 8(2A) of the Central Sales Tax Act, 1956, held as follows: May it be noted that the Supreme Court in Pine Chemicals Ltd. Vrs. Assessing Authority, (1992) 85 STC 432 held that the dealers- assessees were entitled to claim the benefit of the provision contained in Section 8(2-A) of the CST Act in view of the exemption granted to them under the Jammu and Kashmir Government Order No. 159. The Commissioner of Sales Tax, Jammu and Kashmir sought review of the aforesaid judgment and the Supreme Court by judgment dated October 24, 1994 in Commissioner of Sales Tax, Jammu and Kashmir ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Sun Export Corporation Vrs. Collector of Customs, (1997) 6 SCC 564] is not correct and all the decisions which took similar view as in Sun Export case (supra) stands overruled. 6.10. Another significant fact which has come to fore in the matter is that while complying with the terms of notice dated 31.03.2022 under Section 148, the petitioner-College has furnished return in Form ITR-7 mentioning therein that the same is filed under Section 139(4A). The petitioner-College, by furnishing said return for the Assessment Year 2015-16, copy of which is enclosed to the writ petition as Annexure-4 series, disclosed the following fact: Details of the projects/institutions run by you Sl.No. Name of the project/ institution Nature of activity (see instructions para 11d) Classification code (see instructions para 11d) Approval/ Notification/ Registration No. Approving/ Registering Authority Section under which exemption claimed, if any (see instruction para 11e) 1 Stewart Science Col ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... oner-College, can be accepted on the face of its claim of exemption from filing return based on pre-amended position contained in Section 139(4C)(e) vis- -vis provisions contained in Section 139(4D)? ii. Whether the claim of exemption under Section 10(23C)(iiiab) by the petitioner-College can be considered in the light of return in Form ITR-7 mentioning therein that the same has been filed under Section 139(4A), which is applicable to the educational institution having charitable activity, but not minority educational institution as claimed in the writ petition? iii. Whether the petitioner-College exists solely for educational purposes and not for purposes of profit and it is wholly or substantially financed by the Government? iv. Whether the Certificate issued on 28th of January, 2021 by the National Commission for Minority Educational Institutions and Letter dated 10.12.2021 and Letter dated 20.04.2022 issued by the Department of Higher Education, being not contemporaneous documents, can be taken as evidence to arrive at a conclusion that the claim of exemption would be embraced within fold of Section 10(23C)(iiiab)? v. Whether the documents available at ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... making elaborate discussion on the subject, the said Court held as follows: Thus, the consistent view is that where the proceedings have not even been concluded by the statutory authority, the writ Court should not interfere at such a pre-mature stage. Moreover it is not a case where from bare reading of notice it can be axiomatically held that the authority has clutched upon the jurisdiction not vested in it. The correctness of order under Section 148A(d) is being challenged on the factual premise contending that jurisdiction though vested has been wrongly exercised. By now it is well settled that there is vexed distinction between jurisdictional error and error of law/fact within jurisdiction. For rectification of errors statutory remedy has been provided. In the light of aforesaid settled proposition of law, we find that there is no reason to warrant interference by this Court in exercise of the jurisdiction under Article 226/227 of the Constitution of India at this intermediate stage when the proceedings initiated are yet to be concluded by a statutory authority. Hence the writ petition stands dismissed. 7.2. The said Judgment of the Hon ble Punjab Haryana High ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... i case [1995 Supp (3) SCC 433]. 10. The issues relating to entertaining writ petitions when alternative remedy is available, were examined by this Court in several cases and recently in State of H.P. Vrs. Gujarat Ambuja Cement Ltd. [(2005) 6 SCC 499]. 11. Except for a period when Article 226 was amended by the Constitution (Forty-second Amendment) Act, 1976, the power relating to alternative remedy has been considered to be a rule of self-imposed limitation. It is essentially a rule of policy, convenience and discretion and never a rule of law. Despite the existence of an alternative remedy it is within the jurisdiction or discretion of the High Court to grant relief under Article 226 of the Constitution. At the same time, it cannot be lost sight of that though the matter relating to an alternative remedy has nothing to do with the jurisdiction of the case, normally the High Court should not interfere if there is an adequate efficacious alternative remedy. If somebody approaches the High Court without availing the alternative remedy provided, the High Court should ensure that he has made out a strong case or that there exist good grounds to invoke the extraordinary ju ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... In Harbanslal Sahnia Vrs. Indian Oil Corporation Ltd. [(2003) 2 SCC 107] this Court held that the rule of exclusion of writ jurisdiction by availability of alternative remedy is a rule of discretion and not one of compulsion and the court must consider the pros and cons of the case and then may interfere if it comes to the conclusion that the Petitioner seeks enforcement of any of the fundamental rights; where there is failure of principles of natural justice or where the orders or proceedings are wholly without jurisdiction or the vires of an Act is challenged. 15. In Veerappa Pillai Vrs. Raman Raman Ltd. [1952 SCR 583 = AIR 1952 SC 192], CCE Vrs. Dunlop India Ltd. [(1985) 1 SCC 260 = 1985 SCC (Tax) 75 = AIR 1985 SC 330], Ramendra Kishore Biswas Vrs. State of Tripura [(1999) 1 SCC 472 = 1999 SCC (L S) 295 = AIR 1999 SC 294], Shivgonda Anna Patil Vrs. State of Maharashtra [(1999) 3 SCC 5 = AIR 1999 SC 2281], C.A. Abraham Vrs. ITO [(1961) 2 SCR 765 = AIR 1961 SC 609], Titaghur Paper Mills Co. Ltd. Vrs. State of Orissa [(1983) 2 SCC 433 = 1983 SCC (Tax) 131 = AIR 1983 SC 603], H.B. Gandhi Vrs. Gopi Nath Sons [1992 Supp (2) SCC 312], Whirlpool Corporation Vrs. Registrar of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... very wide powers in the matter of issuing writs on the High Court, the remedy of writ is absolutely discretionary in character. If the High Court is satisfied that the aggrieved party can have an adequate or suitable relief elsewhere, it can refuse to exercise its jurisdiction. The Court, in extraordinary circumstances, may exercise the power if it comes to the conclusion that there has been a breach of the principles of natural justice or the procedure required for decision has not been adopted. [ See N.T. Veluswami Thevar Vrs. G. Raja Nainar [AIR 1959 SC 422], Municipal Council, Khurai Vrs. Kamal Kumar [AIR 1965 SC 1321 = (1965) 2 SCR 653], Siliguri Municipality Vrs. Amalendu Das [(1984) 2 SCC 436 = 1984 SCC (Tax) 133], S.T. Muthusami Vrs. K. Natarajan [(1988) 1 SCC 572], Rajasthan SRTC Vrs. Krishna Kant [(1995) 5 SCC 75 = 1995 SCC (L S) 1207 = (1995) 31 ATC 110], Kerala SEB Vrs. Kurien E. Kalathil [(2000) 6 SCC 293], A. Venkatasubbiah Naidu Vrs. S. Chellappan [(2000) 7 SCC 695], L.L. Sudhakar Reddy Vrs. State of A.P. [(2001) 6 SCC 634], Shri Sant Sadguru Janardan Swami (Moingiri Maharaj) Sahakari Dugdha Utpadak Sanstha Vrs. State of Maharashtra [(2001) 8 SCC 509], Pratap Singh ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Sri Radhakrishnan, appearing for the appellants that the High Court has committed error in entertaining the writ petition under Article 226 of Constitution of India at the stage of show cause notices. Though there is no bar as such for entertaining the writ petitions at the stage of show cause notice, but it is settled by number of decisions of this Court, where writ petitions can be entertained at the show cause notice stage. Neither it is a case of lack of jurisdiction nor any violation of principles of natural justice is alleged so as to entertain the writ petition at the stage of notice. High Court ought not to have entertained the writ petition, more so, when against the final orders appeal lies to this Court. The judgment of this Court in the case of Union of India Vrs. Guwahati Carbon Ltd., (2012) 11 SCC 651 = 2012 SCC OnLine SC 210 relied on by the learned senior counsel for the appellants also supports their case. In the aforesaid judgment, arising out of Central Excise Act, 1944, this Court has held that excise law is a complete code in order to seek redress in excise matters and held that entertaining writ petition is not proper where alternative remedy under statute i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... w cause notice within a period of six weeks from the date of the assesses receiving the amended show cause notice. 6. On receiving replies from the assessees the Assessing Authority shall hear and dispose of the matters as expeditiously as possible in accordance with law and in accordance with the directions given hereinabove. 7. We make it clear that the Assessing Authority will decide the matters uninfluenced by any observations made by the High Court/Tribunal in the earlier round of litigation. 8. All contentions on both sides are expressly kept open. At this stage we do not wish to express any opinion on the merits of the case. 8.6. In an identical case relating to writ petition questioning the Show Cause Notice relating to service tax under Chapter-V of the Finance Act, 1994, viz. Bhubaneswar Development Authority Vrs. Commissioner of Central Excise, 2015 SCC OnLine Ori 53 , this Court observed as follows: 5. After hearing the learned counsel for the respective parties, it would be relevant herein to take note that the judgment of the Hon ble Supreme Court in the case of Collector of Central Excise, Hyderabad Vrs. M/s. Chemphar Drugs and Liniments, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ibunal. In the facts and circumstances of the said case, Hon ble Supreme Court came to hold that this finding of fact having been ultimately held against the revenue by the Tribunal which is the final fact forum and dismissed the appeal filed by the revenue on the basis that it did not want to interfere the facts determined by the Tribunal in the said case. 8. In the present set of circumstances of the case, any finding by the Court at this stage is likely to be prejudicial, either the Petitioner-BDA or the Service Tax Authority. *** 8.7. In Supreme Paper Mills Limited Vrs. Assistant Commissioner of Commercial Taxes, (2010) 11 SCC 593 = (2010) 31 VST 1 (SC), the Hon ble Supreme Court after taking note of earlier case being Sales Tax Officer, Ganjam Vrs. Uttareswari Rice Mills, (1973) 3 SCC 171 = 1973 SCC (Tax) 123 = AIR 1972 SC 2617 = (1972) 30 STC 567 (SC) = (1973) 89 ITR 6 (SC), wherein challenge was made to Show Cause Notice, has been pleased to make the following observation: 14. In our considered opinion, the ratio of the aforesaid decision in Uttareswari Rice Mills case [(1973) 3 SCC 171 = 1973 SCC (Tax) 123] of this Court is squarely applicable to th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of sub-section (10) of said Section 11- A, the person concerned has to be afforded opportunity of being heard and after considering his representation, if any, the amount of duty of excise due from such person has to be determined by the Central Excise Officer. Without going into other details regarding the period of limitations and the circumstances under which show-cause notice can be issued, the crux of the matter is that such determination is after the issuance of show-cause notice followed by affording of opportunity and consideration of representation, if any, made by the person concerned. *** 10. The issuance of show-cause notice under Section 11-A also has some significance in the eye of the law. The day the show-cause notice is issued, becomes the reckoning date for various issues including the issue of limitation. If we accept the submission of the respondent that a prima facie view entertained by the department whether the matter requires to be proceeded with or not is to be taken as a decision or determination, it will create an imbalance in the working of various provisions of Section 11-A of the Act including periods of limitation. It will be difficult to re ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... reply was required to be extended in order to enable it to collect further material. It cannot, therefore, be said that the notice dated 31.03.2022 under Section 148 is vulnerable. Reference can be made to GKN Driveshafts (India) Ltd. Vrs. ITO, (2003) 1 SCC 72 = 2002 SCC OnLine SC 1116 as the guiding rule for the Adjudicating Authorities as enunciated by the Hon ble Apex Court. Paragraph 5 of said Judgment speaks as follows: 5. We see no justifiable reason to interfere with the order under challenge. However, we clarify that when a notice under Section 148 of the Income Tax Act is issued, the proper course of action for the noticee is to file return and if he so desires, to seek reasons for issuing notices. The assessing officer is bound to furnish reasons within a reasonable time. On receipt of reasons, the noticee is entitled to file objections to issuance of notice and the assessing officer is bound to dispose of the same by passing a speaking order. In the instant case, as the reasons have been disclosed in these proceedings, the assessing officer has to dispose of the objections, if filed, by passing a speaking order, before proceeding with the assessment in respect ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... es are available are not such matters. We can also take judicial notice of the fact that the vast majority of the petitions under Article 226 of the Constitution are filed solely for the purpose of obtaining interim orders and thereafter prolong the proceedings by one device or the other. The practice certainly needs to be strongly discouraged. 50. In Punjab National Bank Vrs. O.C. Krishnan, (2001) 6 SCC 569 this Court considered the question whether a petition under Article 227 of the Constitution was maintainable against an order passed by the Tribunal under Section 19 of the DRT Act and observed : (SCC p. 570, paras 5-6) 5. In our opinion, the order which was passed by the Tribunal directing sale of mortgaged property was appealable under Section 20 of the Recovery of Debts Due to Banks and Financial Institutions Act, 1993 (for short the Act ). The High Court ought not to have exercised its jurisdiction under Article 227 in view of the provision for alternative remedy contained in the Act. We do not propose to go into the correctness of the decision of the High Court and whether the order passed by the Tribunal was correct or not has to be decided before an approp ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... l not consider itself restricted to the pleadings of the State but would be free to satisfy itself whether any case as such is made out by a person invoking its extraordinary jurisdiction under Article 226 of the Constitution. 30. The Court while exercising its jurisdiction under Article 226 is duty-bound to consider whether: (a) adjudication of writ petition involves any complex and disputed questions of facts and whether they can be satisfactorily resolved; (b) the petition reveals all material facts; (c) the petitioner has any alternative or effective remedy for the resolution of the dispute; (d) person invoking the jurisdiction is guilty of unexplained delay and laches; (e) ex facie barred by any laws of limitation; (f) grant of relief is against public policy or barred by any valid law; and host of other factors. The Court in appropriate cases in its discretion may direct the State or its instrumentalities as the case may be to file proper affidavits placing all the relevant facts truly and accurately for the consideration of the Court and particularly in cases where public revenue and public interest are involved. Such directions are al ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ary, 2022 [2022 SCC OnLine Del 105 = (2022) 442 ITR 101 (Del) = (2022) 325 CTR 252 (Del)] has held that the use of the expression may in Section 144B(7)(viii) is not decisive. Where discretion is conferred upon quasi judicial authority whose decision has civil consequences, the word may which denotes discretion should be construed to mean a command. Consequently, the requirement of giving an assessee a reasonable opportunity of personal hearing is mandatory. 8.14. The present case is neither a case of lack of jurisdiction nor can there be any allegation of violation of principles of natural justice. It is enunciated in Deepak Agro Foods Vrs. State of Rajasthan, (2008) 7 SCC 748 = (2008) 10 SCR 877 = (2008) 16 VST 454 (SC) as follows: 17. All irregular or erroneous or even illegal orders cannot be held to be null and void as there is a fine distinction between the orders which are null and void and orders which are irregular, wrong or illegal. Where an authority making order lacks inherent jurisdiction, such order would be without jurisdiction, null, non est and void ab initio as defect of jurisdiction of an authority goes to the root of the matter and strikes at ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... matter over which it has no jurisdiction is a nullity and is open to collateral attack, an order passed by an authority which has jurisdiction over the matter, but has assumed it otherwise than in the mode prescribed by law, is not a nullity. It may be liable to be questioned in those very proceedings, but subject to that it is good, and not open to collateral attack. Therefore even if the proceedings for assessment were taken against a non-registered dealer without the issue of a notice under Section 10(1) that would be a mere irregularity in the assumption of jurisdiction and the orders of assessment passed in those proceedings cannot be held to be without jurisdiction and no suit will lie for impeaching them on the ground that Section 10(1) had not been followed. This must a fortiori be so when the appellant has itself submitted to jurisdiction and made a return. We accordingly agree with the learned Judges that even if the registration of the appellant as a dealer under Section 8 is bad that has no effect on the validity of the proceedings taken against it under the Act and the assessment of tax made thereunder. [Emphasis laid] 8.16. The petitioner has ample opportun ..... 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