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TMI Blog2023 (5) TMI 1012X X X X Extracts X X X X X X X X Extracts X X X X ..... on of income under Section 10(26) of the Act and, as such, not obliged to file any return of income under Section 139(1) of the Act or her income be charged to tax. 4. Some essential facts need to be noticed for the limited purpose of the adjudication involved herein. 5. The petitioner received a notice under Section 148 of the Act dated March 27, 2021 by which the assessing officer informed the petitioner that he had reason to believe that the huge income of the petitioner had escaped assessment upon the petitioner not having been filed the return of income for AY 2013-14 within the stipulated time. 6. The reasons recorded under Section 148(2) of the Act indicated that information gathered by the assessing officer revealed that the writ petitioner had paid in excess of Rs .7.74 crore as investment in mutual funds and had high-value banking transactions or deposits in excess of Rs. 30 lakh, totaling to transactions in excess of Rs. 8.05 crore during the relevant year. The assessing officer went on to record that despite such huge transactions, the writ petitioner had not filed any return of income and the assessing officer had reason to believe that the income of the writ petiti ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hillong and her income arose only in Meghalaya which is a Sixth Schedule State. She asserted that she did not file any return of income for AY 2013-14 "as the same is exempted from income-tax under Section 10(26)". She forwarded her scheduled tribe certificate along with her reply and indicated that she did not maintain any books of accounts. She, however, offered to furnish her bank account statements but suggested that since such records were voluminous, it was not convenient to append the same with her reply. 11. On the basis of such material before the relevant authority, an order came to be made on March 22, 2022 finding that the writ petitioner herein was liable to pay a huge amount by way of income-tax. 12. In similar circumstances, the incomes of the petitioner for several other assessment years were also taken up for consideration and orders passed under Section 147 of the Act on similar lines. 13. At the outset, when this writ petition was received and even at the time that several adjournments were obtained by the petitioner, a submission had been consistently made on behalf of the Department to the effect that the orders impugned were amenable to appeal and, as such, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e exempted or not. 16. A fundamental issue is raised, but it may not be necessary in the present context to look into the same. If the petitioner is understood correctly, the petitioner must be seen to suggest that where an exemptee under Section 10(26) of the Act perceives the entire income accrued to such person in an assessment year to be exempt by virtue of Section 10(26) of the Act, Section 139(1) of the Act would not come into play for such person to be required to file a return of income. In a sense, the petitioner seeks to suggest that as long as the relevant person is satisfied that he is not liable to pay any income-tax by virtue of his total income being exempted as per his perception, he cannot be touched. 17. As a continuation of such line of reasoning, it is submitted on behalf of the petitioner that if there is any lacuna in a taxing statute, it is not for the Court to bridge the same or read words into a provision that do not exist. The petitioner insists that since the expression "total income" used in Section 139(1) of the Act has to be given the same meaning as such expression has been defined in Section 10(45) of the Act, the perception of a person that his in ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of the expression "alternative remedy" it implies that there could be two forms of the similar remedy available to the petitioner; whereupon the writ court exercises self-restraint and nudges the petitioner to approach the regular forum, unless there are some classical exceptions. 20. There are certain cardinal tests which are to be applied in course of the court exercising self-restraint and requiring the parties to go to the regular forum. These tests have been noticed in several decisions and, quite akin to a situation under Order VII Rule 11 of the Code of Civil Procedure, 1908 and in cases where a first information report may be quashed for it not indicating the ingredients of any offence or a show-cause notice being challenged as without jurisdiction, the tests have been comprehensively noticed in the judgment reported at (1998) 8 SCC 1 (Whirlpool Corporation v. Registrar of Trade Marks). 21. Indeed, the four criteria from Whirlpool have been set out in the judgment of Godrej Sara Lee. These tests are the following: (i) Where the writ petition seeks enforcement of any fundamental right; (ii) Where there is violation of the principles of natural justice; (iii) Where t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... eedings and seeking to challenge only the outcome thereafter. 26. This case also does not involve any challenge to the vires of any provision. There is a huge chasm between the interpretation of a provision and the challenge to the legality of a provision. When it is a challenge to a provision, a Constitutional Court, if prima facie satisfied of an element of merit in the challenge, may not relegate the parties to the usual forum since, if the alternative forum is a tribunal, it may not have the authority even to go into the question of vires. However, by merely challenging the vires of a provision without there being any element of substance therein, no disingenuous knave can bypass the regular procedure and insist on the Constitutional Court to adjudicate the lis carried by him. 27. In the present case, a regular appeal is maintainable and the submission on behalf of the writ petitioner to the effect that such regular appeal will be confined only to the order passed under Section 147 of the Act and cannot be enlarged to look into the factual aspects going into the making of the order, cannot be countenanced. Indeed, when an appeal is of limited scope, the appellate provision wi ..... X X X X Extracts X X X X X X X X Extracts X X X X
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