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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 ..... limited only to Section 147 and not take up the fundamental issue that is sought to be raised in the present proceedings. Finally, the writ petitioner appeals to the Court to exercise its discretion since the primary premise of the argument falls within a narrow campus. The petitioner appeals that it would be better if the legal question raised were to be decided and the matter left to the Department for the Department s further consideration. Ordinarily, there is an element of bona fides which is taken into consideration by a writ court, particularly when allowing its discretion to be exercised in an extraordinary manner. All that was required of her upon receiving the several notices was to demonstrate that such income, in its entirety, was exempted under Section 10(26) - Yet, notice after notice went unheeded till the petitioner furnished the details of her bank accounts, claimed that she had invested and reinvested in mutual funds and glibly submitted that she maintained no accounts despite maintaining that she was an authorised distributor of LPG gas cylinder and an exporter of coal and limestone and the like. Such conduct on the part of a citizen would not excite ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... itioner 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 petitioner chargeable to tax had escaped assessment for the relevant assessment year. The assessing officer asserted that the escapement was on account of the omission or failure on the part of the writ petitioner herein to fully disclose material facts necessary for the purpose of as ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ith 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, this Court should not entertain the petition under Article 226 of the Constitution. However, since it was submitted on behalf of the petitioner that a pure question of law was involved, the matter languished and was ultimately taken up for consideration of the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f 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 income is exempt is enough to not require such person to file any return of income. Though the Department seeks to suggest that a person cannot be both the judge and the jury in his own cause and once the total income exceeds the income that is not chargea ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 the order or the proceedings are wholly without jurisdiction; or (iv) Where the vires of an Act is challenged. 22. It may be also added in the same breath that merely because there is an alternative remedy does not prompt ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 will expressly provide therefor as in cases where appeals are limited to questions of law and facts are excluded. There is no expression in the entirety of Section 246A of the Act to construe the power of the appella ..... X X X X Extracts X X X X X X X X Extracts X X X X
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