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TMI Blog2024 (2) TMI 116X X X X Extracts X X X X X X X X Extracts X X X X ..... t shown to form part of the books of accounts regularly maintained by the assessee or his business entities, do not constitute material evidence. Following the law declared by the Hon ble Apex Court, we are of the view that the action taken by the respondent / Revenue against the Assessee based on the material contained in the diaries/loose sheets, are contrary to the law declared by the Hon ble Apex Court. In that view of the matter, impugned notices issued under Section 153C of the Act, based on the loose sheets/diaries are contrary to law, which require to be set aside in these writ appeals, as the same are void and illegal. Whether Centralization is in violation of Section 127 of the Income Tax Act, 1961, is valid? - officer of Bangalore Judicature sent Notice and Assessment order to the resident of Delhi - As per section 127 of the IT Act, before transferring the cases, a reasonable opportunity must be provided to the Assessee, which is evaded as per the papers provided herein, furthermore officer of Bangalore Judicature should not have sent Notice and Assessment order to the respondent who is a resident of Delhi which is in total violation of section 127 of the Act. Whether t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Court finds that factual disputes are involved and it would not be desirable to deal with them in a writ petition. The learned Single Judge had referred to a plethora of decisions which were facilitated on behalf of the petitioners and respondent / Revenue and the same decisions have been referred to even in the present writ appeals. In the given facts and circumstances of the matter, it is relevant to refer to the case of NISHANT CONSTRUCTION (P) LTD. [ 2017 (3) TMI 1048 - ITAT AHMEDABAD ] wherein it is held that, in the absence of any corroborative evidence, loose sheet can at the most be termed as dumb document which did not contain full details about the dates, and its contents were not corroborated by any material and could not be relied upon and made the basis of addition. Reliance can also be placed on the judgment of the Panaji Bench of ITAT in the case of ABHAY KUMAR BHARAMGOUDA PATIL [ 2018 (9) TMI 209 - ITAT PANAJI wherein the judgment of the Apex Court was relied upon. In the instant case, the first issue raised by the Revenue is as regards the addition of income made by the Assessing Officer based on loose sheets found in the house of a third party. We find that the Re ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... i. Y V Raviraj - Advocate) For the Respondent : (By Sri Kiran S Javali Sr. Counsel For Sri. Sreehari Kutsa Advocate For C/Respondent) (By Sri A Mahesh Chowdhary Advocate) JUDGMENT K. SOMASHEKAR J., These appeals have been preferred by the Deputy Commissioner of Income Tax, Circle 1(4) (for short Revenue ), challenging the common order dated 12.08.2022 passed by a learned Single Judge of this Court in W.P. No. 9937/2022 and connected matters. All these appeals are directed against one Shri Sunil Kumar Sharma who is the respondent in W.A. Nos. 830/2022, 831/2022, 832/2022 and 833/2022 and one Shri Kandaswamy Rajendran who is the respondent in W.A. No. 834/2022. The respondents shall hereinafter be referred to as the assessee for brevity. 2. Since all these appeals which have been preferred by the Revenue arise out of a common order dated 12.08.2022 rendered by a learned Single Judge in W.P. No. 9937/2022 and connected petitions, they are heard together and are disposed of by this common order. 3. Heard the arguments advanced by the then learned Addl. Solicitor General Shri Balbir Singh as well as the present learned counsel Sri Y V Raviraj who is on record for appellants in WA. Nos. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... its order dated 31.12.2019. The assessee challenged the said order by preferring an appeal as on 30.01.2020 before the Commissioner of Income Tax, Appeals, which appeal is pending consideration. In view of the fact that the said appeal was still pending consideration, the assessee is said to have preferred writ petitions as on 23.05.2022 challenging the notice and the order of assessment. 6. Respondents / Assessee, while urging the aforementioned aspects, questioned the impugned notices calling upon Assessee herein to submit his returns of income for the Assessment Year 2015-2016, as without jurisdiction. The main grievance of the respondents is that impugned notices under Section 153C of the Act is to be issued on other person and the respondents being searched person , the impugned notice under Section 153C of the Act is not maintainable. Hence, the impugned order by the Commissioner of Income Tax in the CIT(A) was challenged through Writ Petition No. 9937/2022 connected matters before a learned Single Judge of this High Court. Further, aggrieved by the common order of the learned Single Judge of this High Court, the Appellant/Revenue has come before this Division Bench challengi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e IT Act, the result is that there are no proceedings pending before the Assessing Officer and in view of the same, the order of remand cannot be given effect to and it would only remain a futile exercise. Being aggrieved by the same, it is contended that the Revenue has preferred the appeals on various grounds. 9. The then learned ASG contends that after the appearance of the Revenue, no arguments were addressed on behalf of the Assessee. Since the learned Single Judge had indicated that the Revenue was to argue regarding the order of assessment being passed without considering the law laid down by the Hon ble Supreme Court in the case of CBI vs. V.C. SHUKLA ((1998 3 SCC 410)) and COMMON CAUSE vs. UNION OF INDIA ((2017) 11 SCC 731)) , the arguments were addressed by the Revenue only on the said issue. However, the learned Single Judge has proceeded to address various other issues raised in the writ petitions which were not at all argued, without considering the Statement of objections filed by the Revenue in response to the contentions raised in the writ petitions. Hence, it is contended that the order of the learned Single Judge is in violation of the principles of natural justic ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... is contended by the then learned Addl. ASG that since the assessee prior to transfer of jurisdiction under Section 127 of the IT Act was assessed in Bangalore and after transfer of jurisdiction under Section 127 of the IT Act also, the assessee jurisdiction remains in Bangalore only. Hence, the order of the learned Single Judge is without proper appreciation of the facts aspects, which is liable to be set aside. 13. It is further pointed out that the objection filed by the assessee dated 18.11.2019 for issuance of notice under Section 153C of the IT Act was disposed of on 28.11.2019. Subsequently, the assessee participated in the assessment proceedings and the same came to be concluded by order dated 31.12.2019. It is contended that in view of Section 124(3)(c) of the IT Act, the assessee is not entitled to question the jurisdiction of the Assessing Officer, after expiry of one month from the date of notice or assessment order, whichever is earlier. Though specific contention has been raised on this issue, the learned Single Judge has not recorded any finding on this aspect. Hence, it is contended that the order of the learned Single Judge without consideration of the various conte ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Hence the finding of the learned single judge that the diary / loose sheets will not fall within the ambit of books of accounts is incorrect. 17. Without prejudice to the above contention it is further submitted that in terms of the law laid down by the Hon ble Supreme Court which has been relied on by the learned single judge, in the case of VC Shukla and Common Cause, the seized diary would fall within the ambit of books of accounts and holding the diary as not admissible evidence is contrary to the law laid down by the Hon ble Supreme Court. On all these grounds, learned counsel for the appellant / Revenue prayed to allow the appeals and thereby to set aside the order of the learned Single Judge. 18. The Respondents in this Writ Appeal entered appearance and vehemently contended that the Appellant / Revenue Authorities have concluded that the income that has escaped assessment and notice under Section 153C of the Income Tax Act, 1961 are solely issued on loose sheets and are termed as Dairies during the search, which does not come under the ambit of book of entry or as evidence under the Indian Evidence Act, 1872. Hence, it is contended that the said evidence is not corroborativ ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 61, and in the judgment of SUPER MALLS (P.) LTD V. PCIT 8, NEW DELHI (2020) 115 TAXMAN.COM 105(SC). 21. Both the Appellant-Revenue and Respondent-Assessee entered appearance and submitted their arguments extensively. On hearing the learned counsel for both the parties, this Court finds it relevant to examine the following questions that arises for consideration in these writ appeals, which are as under: 1) Whether Loose Sheets and Diary have any evidentiary value? 2) Whether Centralization is in violation of Section 127 of the Income Tax Act, 1961, is valid? 3) Whether the Notice under Section 153C of the Income Tax Act, 1961 is valid herein? As regards Question No. 1: Upon reading the material provided and the order of the learned Single Judge delivered on 12.08.2022, it is evident that the income that has escaped assessment and notices under Section 153C of the Income Tax Act, 1961, were solely issued based on loose sheets and documents which are termed as diaries found during the search. The applicability of Section 69A of the Act arises only when the principles laid down under Section 68 of the Act are satisfied. Section 68 states that there must be books of accounts or any boo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... . Section 3 declares that a fact a relevant to another when it is connected with the other in any of the ways referred to in the provisions of the Act relating to the relevancy of facts; and those provisions are to be found in Section 6 to 55 appearing in Chapter II. Section 5, with which Chapter II opens, expressly provides that evidence may be given in any suit or proceeding of the existence or non-existence of every fact in issue and the facts declared relevant in the aforesaid section, and of no others. Section 34 of the Act reads as under:- 34. Entries in books of account when relevant - Entries in book of account, regularly kept in the course of business, are relevant whenever they refer to a matter into which the court has to inquire but such statements shall not alone be sufficient evidence to charge any person with liability. 17. From a plain reading of the Section it is manifest that to make an entry relevant thereunder it must be shown that it has been made in a book, that book is a book of account and that book of account has been regularly kept in the course of business. From the above Section it is also manifest that even if the above requirements are fulfilled and th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... in the meaning of Section 34, but not the loose sheets of papers contained in the two files (MR 72/91 and MR 73/91). 25. The Hon ble Supreme Court in the case of COMMON CAUSE AND OTHERS v. UNION OF INDIA, reported in (2017) 11 SCC 731 , at paragraphs 278 to 282 of the judgment, has observed thus: 278. With respect to the kind of materials which have been placed on record, this Court in V.C. Shukla case has dealt with the matter though at the stage of discharge when investigation had been completed by same is relevant for the purpose of decision of this case also. This court has considered the entries in Jain Hawala Diaries, note books and file containing loose sheets of papers not in the form of books of accounts and has held that such entries in loose papers/sheets are irrelevant and not admissible under Section 34 of the Evidence Act, and that only where the entries are made in the books of accounts regularly kept, depending on the nature of occupation, that those are admissible. 279. It has further been laid down in V.C. Shukla case as to value of entries in the books of account, that such statements shall not alone be sufficient evidence to charge any person with liability, eve ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... y, only contained entries of monies received from one set of persons and payment thereof to another set of persons it could not be said, by any stretch of imagination that they were books of account, argued Mr. Sibal. He next contended that even if it was assumed for argument s sake that the above books were books of account relating to a business still they would not be admissible under Section 34 as they were not regularly kept. It was urged by him that the words regularly kept mean that the entries in the books were contemporaneously made at the time the transactions took place but a cursory glance of the books would show that the entries were made therein long after the purported transactions took place. In support of his contentions he also relied upon the dictionary meanings of the words account and regularly kept . 281. With respect to evidentiary value of regular account book, this Court has laid down in V.C. Shukla, thus: (SCC p.433, para 37) 37. In Beni Vs. Bisan Dayal [ A. I. R 1925 Nagpur 445] it was observed that entries in book s of account are not by themselves sufficient to charge any person with liability, the reason being that a man cannot be allowed to make evide ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... er Centralization is in violation of Section 127 of the Income Tax Act, 1961, is valid: On a perusal of the writ papers, it indicates that the Appellant / Revenue conducted a search at the premises of one Sri Rajendran at New Delhi and recovered certain diaries/loose sheets, which purportedly consisted certain entries relating to the affairs/transactions of the assessee. Based on the statement of the said Sri Rajendran (Petitioner in Writ petition No. 9946 of 2022) recorded during the investigation, Appellant/Revenue initiated action against the assessee / Sunil Kumar Sharma. In this regard, the Appellant/Revenue, by exercising power under Section 127 of the Act, transferred the case to the Commissioner of Income Tax by virtue of Section 127 of the Act which provides for power to transfer cases. Relevant provision is Section 127(1) of the Act and same is extracted below: Section 127(1): The Principal Director General or Director General or Principal Chief Commissioner or Chief Commissioner or Principal Commissioner or Commissioner, may, after giving the assessee a reasonable opportunity of being heard in the matter, wherever it is possible to do so, and after recording his reasons ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of an assessee to another area the order has to be communicated. Communication of the order is an absolutely essential requirement since the assessee is then immediately made aware of the reasons which impelled the authorities to pass the order of transfer. (Para 9) Under Section 127(1) the reason for recording of reasons in the order and making these reasons known to the assessee is to enable an opportunity to the assessee to approach the High Court under its writ jurisdiction under Article 226 of the Constitution or even the Supreme Court under Article 136 of the Constitution in an appropriate case for challenging the order, inter alia, either on the ground that it is mala fide or arbitrary or that it is based on irrelevant and extraneous considerations. Whether such writ or special leave application ultimately fails is not relevant for a decision of the question. (Para 10) So the requirement of recording reasons under Section 127(1) is mandatory direction under the law and non-communication thereof is not saved by showing that the reasons exist in the file although not communicated to the assessee. Recording of reasons and discourse thereof is not a mere formality. (Para 11 13) ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... at the books of account or documents or assets seized or requisitioned have a bearing on the determination of the total income of such other person for six assessment years immediately preceding the assessment year relevant to the previous year in which search is conducted or requisition is made and for the relevant assessment year or years referred to in sub-section (1) of section 153A: Provided that in case of such other person, the reference to the date of initiation of the search under section 132 or making of requisition under section 132A in the second proviso to sub-section (1) of section 153A shall be construed as reference to the date of receiving the books of account or documents or assets seized or requisitioned by the Assessing Officer having jurisdiction over such other person : Provided further that the Central Government may by rules made by it and published in the Official Gazette, specify the class or classes of cases in respect of such other person, in which the Assessing Officer shall not be required to issue notice for assessing or reassessing the total income for six assessment years immediately preceding the assessment year relevant to the previous year in whi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... fied in the instant case. 31. It is relevant to refer to a judgment in the case of SUPER MALLS (P.) LTD VS PRINCIPAL COMMISSIONER OF INCOME TAX 8, (MANU/SC/0724/2020), wherein the Apex court has dealt with the proposition in detail, which reads thus: 5. We have heard the learned Counsel for the respective parties at length. 5.1. As observed hereinabove, the short question which is posed for the consideration of this Court is, whether there is a compliance of the provisions of Section 153C of the Act by the Assessing Officer and all the conditions which are required to be fulfilled before initiating the proceedings Under Section 153C of the Act have been satisfied or not? 6. This Court had an occasion to consider the scheme of Section 153C of the Act and the conditions precedent to be fulfilled/complied with before issuing notice Under Section 153C of the Act in the case of Calcutta Knitwears (supra) as well as by the Delhi High Court in the case of Pepsi Food Pvt. Ltd. (supra). As held, before issuing notice Under Section 153C of the Act, the Assessing Officer of the searched person must be satisfied that, inter alia, any document seized or requisitioned belongs to a person other t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... icer of the searched person and the other person is the same, it is sufficient by the Assessing Officer to note in the satisfaction note that the documents seized from the searched person belonged to the other person. Once the note says so, then the requirement of Section 153C of the Act is fulfilled. In case, where the Assessing Officer of the searched person and the other person is the same, there can be one satisfaction note prepared by the Assessing Officer, as he himself is the Assessing Officer of the searched person and also the Assessing Officer of the other person. 32. Be that as it may, it is relevant to once again refer to the facts in these appeals relating to challenging the impugned order passed by the learned Single Judge W.P. No. 9937/2022 and connected matters dated 12.08.2022. The question of law in the petitions pertained to the challenge made to the impugned notices issued by the Income Tax Authority under Section 153C of the IT Act and further action thereof. In writ petitions No.9937, 9938, 9939 and 9945 of 2022, Petitioner had questioned the Notice dated 21st August, 2019; Order of Assessment dated 31st December, 2019; and also sought for quashing the Notice ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... re he has reason to suspect such books of account, other documents, money, etc. Further that Section 132 of the Act, empowers seizure or books of account/document not only relatable to searched person, however, in relation to other person also. The Assessing Officer, after compliance of the pre-conditions of recording statement after satisfaction, issued notice under Section 153C of the Act, and therefore, sought for dismissal of Writ Petitions. It was further clarified that Section 132(1) of the Act, provides for person specific and not premises specific and therefore, the determinative factor is the person against whom the warrant of search is issued under Section 132 of the Act. It was further contended by the Revenue that Section 34 of the Evidence Act, 1872 is applicable to the proceedings under Income Tax Act, as the Income tax Act, is itself a Code and accordingly, sought for dismissal of writ petitions. 35. Contrary to his submissions, Sri Kiran S. Javali, learned Senior Counsel invited the attention of the court to the impugned Order of Assessment and notice passed under Section 153C of the Act for the Assessment Year 2015-2016 and argued that the conclusion arrived at by ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f the Hon ble Apex Court in the case of L K VERMA v. HMT AND ANOTHER, reported in (2006)2 SCC 269 and in the case of JEANS KNIT PVT LTD v. COMMISSIONER OF INCOME TAX, reported in (2017)390 ITR 10 (SC) and argued that this Court is having jurisdiction to interfere with the impugned notices issued by the Revenue as the same is without jurisdiction and hence sought for interference of this court in those writ petitions. 37. As regards Writ Petition No. 9945 of 2022 is concerned, Sri Kiran S. Javali, learned Senior Counsel had argued that the petitioner therein has preferred appeal under Section 250 of the Act and the respondent No. 1, by order dated 03rd May, 2022, dismissed the appeal without considering the factual aspects of the case in the right perspective. The learned Senior Counsel further contended that since the initiation of proceedings under Section 143 of the Act itself is without jurisdiction, the Revenue ought to have allowed the appeal filed by the petitioner seeking to set aside the Order dated 22nd December, 2021 under Section 143(1) of the Act. In respect of alternative remedy and delay in filing the writ petitions, it was contended that, since the impugned notices u ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e Act, 1872 is not applicable to the facts of the present case. 39. Shri Balbir Singh, learned Additional Solicitor General, further argued that Section 132 of the Act is a Code in itself which provides for search and seizure by the respondent-Revenue as the authorities, based on the incriminating material, have reason to believe in the custody of defaultee. In this regard, learned Additional Solicitor General had referred to the judgment of the Hon ble Apex Court in the case of P.R. METRANI v. COMMISSIONER OF INCOME TAX, BANGALORE reported in (2007)1 SCC 789 and particularly referred to paragraph 17 of the judgment. Further, the learned Additional Solicitor General argued that the constitutional validity of Section 132 of the IT Act has been upheld by the Hon ble Apex Court in the case of POORAN MAL v. DIRECTOR OF INSPECTION reported in (1974) 93 ITR 505 (SC). The learned ASG had also placed reliance on the judgment of the Hon ble Supreme Court in the case of CHUHAMAL v. COMMISSIONER OF INCOME TAX reported in (1988)38 TAXMAN 190 (SC) and argued that presence of the unaccounted money found in the residence of the defaultee at the time of search and seizure, would pave way for initi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the merits of the decision in support of which the application for judicial review is made, but the decision- making process itself. 75. In Chief Constable of the North Wales Police v. Evans (1982) 3 All ER 141, 154 Lord Brightman said : Judicial review, as the words imply, is not an appeal from a decision, but a review of the manner in which the decision was made. Judicial review is concerned, not with the decision, but with the decision-making process. Unless that restriction on the power of the court is observed, the court will in my view, under the guise of preventing the abuse of power, be itself guilty of usurping power. In the same case Lord Hailsham commented on the purpose of the remedy by way of judicial review under RSC, Ord. 53 in the following terms : This remedy, vastly increased in extent, and rendered, over a long period in recent years, of infinitely more convenient access than that provided by the old prerogative writs and actions for a declaration, is intended to protect the individual against the abuse of power by a wide range of authorities, judicial, quasi-judicial, and, as would originally have been thought when I first practiced at the Bar, administrative. I ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nd must give effect to it. (ii) Irrationality, namely, Wednesday unreasonableness. (iii) Procedural impropriety. The above are only the broad grounds but it does not rule out addition of further grounds in course of time. As a matter of fact, in R.V. SECRETARY OF STATE for the Home Department, ex Brind (1991) 1 AC 696, Lord Diplock refers specifically to one development, namely, the possible recognition of the principle of proportionality. In all these cases the test to be adopted is that the court should, consider whether something has gone wrong of a nature and degree which requires its intervention . 78. What is this charming principle of Wednesday unreasonableness? Is it a magical formula? In R. v. Askew (1768) 4 Burr 2186 : 98 ER 139, Lord Mansfield considered the question whether mandamus should be granted against the College of Physicians. He expressed the relevant principles in two eloquent sentences. They gained greater value two centuries later : It is true, that the judgment and discretion of determining upon this skill, ability, learning and sufficiency to exercise and practise this profession is trusted to the College of Physicians and this Court will not take it from ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... where it was said that the dismissal of a teacher for having red hair (cited by Warrington, L.J. in Short v. Poole Corpn., as an example of a frivolous and foolish reason ) was, in another sense, taking into consideration extraneous matters, and might be so unreasonable that it could almost be described as being done in bad faith; see also R. v. Tower Hamlets London Borough Council, ex p Chetnik Developments Ltd. (Chapter 4, p. 73, supra). He summarised the principles as follows: The Court is entitled to investigate the action of the local authority with a view to seeing whether or not they have taken into account matters which they ought not to have taken into account, or, conversely, have refused to take into account or neglected to take into account matter which they ought to take into account. Once that question is answered in favour of the local authority, it may still be possible to say that, although the local authority had kept within the four comers of the matters which they ought to consider, they have nevertheless come to a conclusion so unreasonable that no reasonable authority could ever have come to it. In such a case, again, I think the court can interfere. The powe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rded as unreasonable if it is impartial and unequal in its operation as between different classes. On this basis in R. v. Bernet London Borough Council, ex p Johnson the condition imposed by a local authority prohibiting participation by those affiliated with political parties at events to be held in the authority s parks was struck down. Thus, the learned Single Judge had dwelled in detail the materials placed by the respondent / Revenue therein and rendered its judgment. The said materials have been referred to in the present appeal which is filed challenging the order passed by the learned Single Judge. 42. The learned Single Judge had also examined the law declared by the Hon ble Apex Court with regard to acceptance of diaries/loose sheets by the respondent-Revenue. In the case of VC SHUKLA (supra), at paragraphs 16 to 18 of the judgment, it is observed thus: 16. To appreciate the contentions raised before us by the learned counsel for the parties it will be necessary at this stage to refer to the material provisions of the Act. Section 3 declares that a fact a relevant to another when it is connected with the other in any of the ways referred to in the provisions of the Act re ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he binding is of a kind which is not intended to the moveable in the sense of being undone and put together again. A collection of papers in a portfolio, or clip, or strung together on a piece of twine which is intended to be untied at will, would not, in ordinary English, be called a book I think the term book in S. 34 aforesaid may properly be taken to signify, ordinarily, a collection of sheets of paper bound together with the intention that such binding shall be permanent and the papers used collectively in one volume. It is easier however to say what is not a book for the purposes of S. 34, and I have no hesitation in holding that unbound sheets of paper in whatever quantity, though filled up with one continuous account, are not a book of account within the purview of S.34. We must observe that the aforesaid approach is in accord with good reasoning and we are in full agreement with it. Applying the above tests it must be held that the two spiral note books (MR 68/91 and 71/91) and the two spiral pads (MR 69/91 and MR 70/91) are books within the meaning of Section 34, but not the loose sheets of papers contained in the two files (MR 72/91 and MR 73/91). (emphasis supplied) 43. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ted in them or there is an error on the face of the record and such act, omission, error or excess has resulted in manifest injustice. (b) Further, alternative remedy is no bar where a party comes to the Court with an allegation that his right has been or is being threatened to be infringed by a law which is ultra vires the powers of the legislature which enacted it and as such void, vide Bengal Immunity Co. vs. State of Bihar [AIR 1955 SC 661]. (c) Similarly, when a fundamental right is infringed, the bar for entertaining the writ petition and granting relief on the ground of alternative remedy would not apply, vide State of Bombay vs. United Motors Ltd. [AIR 1953 SC 252] and Himmat Lal vs. State of M.P. [AIR 1954 SC 403]. (d) The rule of alternate remedy being a bar to entertain a writ petition is a rule of practice and not of jurisdiction. In appropriate cases, High Court may entertain a petition even if the aggrieved party has not exhausted the remedies available under a statute before the departmental authorities, vide State of West Bengal vs. North Adjai Cool Company [1971 (1) SCC 309]. (e) Further, alternative remedy must be effective. An appeal in all cases cannot be said t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ranted, is a rule of policy, convenience and discretion rather than a rule of law and instances are numerous where a writ of certiorari has been issued in spite of the fact that the aggrieved party had other adequate legal remedies. Ultimately, in paragraph 20 of Whirlpool Corporation, the Hon ble Supreme Court observed as under: Much water has since flown under the bridge, but there has been no corrosive effect on these decisions which, though old, continue to hold the field with the result that law as to the jurisdiction of the High Court in entertaining a writ petition under Article 226 of the Constitution, in spite of the alternative statutory remedies, is not affected, specially in a case where the authority against whom the writ is filed is shown to have had no jurisdiction or had purported to usurp jurisdiction without any legal foundation. In the said case (Whirlpool Corporation), it was also observed that the High Court was not justified in dismissing the writ petition at the initial stage without examining the contention that the show cause notice issued to the appellant was wholly without jurisdiction. In the said case, the Registrar of Trade Marks issued to the appellan ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tion. Where under a statute there is an allegation of infringement of fundamental rights or when on the undisputed facts the taxing authorities are shown to have assumed jurisdiction which they do not possess can be the grounds on which the writ petitions can be entertained. But, normally, the High Court should not entertain writ petitions unless it is shown that there is something more in a case, something going to the root of the jurisdiction of the officer, something which would show that it would be a case of palpable injustice to the writ petitioner to force him to adopt the remedies provided by the statute. But, if the High Court had entertained a petition despite availability of an alternative remedy, it would not be justifiable for the High Court to dismiss the same on the ground of non-exhaustion of statutory remedies, unless the High Court finds that factual disputes are involved and it would not be desirable to deal with them in a writ petition. In the said case, the question was liability to pay purchase tax on the royalty paid by the respondents, i.e., the holder of mining lease, where there was a price for removal of minerals and thus, attracted liability to pay purch ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... held to have jurisdiction to decide a particular matter, it must not only have jurisdiction to try the suit brought, but must also have the authority to pass the orders sought for. This would mean that the jurisdiction must include (i) the power to hear and decide the questions at issue and (ii) the power to grant the relief asked for. Ultimately, in paragraph 24, it was observed as follows: Therefore, insofar as the question of exercise of the power conferred by Article 226 of the Constitution, despite the availability of a statutory alternative remedy, is concerned, Anisminic cannot be relied upon. The distinction between the lack of jurisdiction and the wrongful exercise of the available jurisdiction should certainly be taken into account by High Courts, when Article 226 of the Constitution is sought to be invoked bypassing a statutory, alternative remedy provided by a special statute. In the said case, the question was, as to, whether, the NCLT lacked the jurisdiction to issue a direction in relation to a matter covered by Mines and Minerals (Development and Regulation) Act, 1957 (MMDR Act) and the Statutory Rules issued thereunder; or, there was mere wrongful exercise of a re ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ot absolute but had to be exercised judiciously in the given facts of a case and in accordance with law. The normal rule is that a writ petition under Article 226 of the Constitution ought not to be entertained if alternate statutory remedies are available, except in cases falling within the well-defined exceptions as observed in Commissioner of Income Tax and Others vs. Chhabil Dass Agarwal, [(2014) 1 SCC 603], (Chhabil Dass Agarwal). In the latter decision, it has been held that the exceptions to the rule of non- interference when efficacious, alternative remedy is available are as under which are illustrative and non- exhaustive: (i) where remedy available under statute is not effective but only mere formality with no substantial relief; (ii) where statutory authority not acted in accordance with provisions of enactment in question, or; (iii) where statutory authority acted in defiance of fundamental principles of judicial procedure, or; (iv) where statutory authority resorted to invoke provisions which are repealed, or; (v) where statutory authority passed an order in total violation of principles of natural justice. (e) In United Bank of India vs. Satyawati Tondon and others, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... to cite the law declared by the Hon ble Apex Court in the case of BRIGADIER NALIN KUMAR BHATIA v. UNION OF INDIA AND OTHERS, reported in (2020)4 SCC 78, wherein at paragraph 22 of the said judgment, it is observed thus: 22. There is no presumption that a decision taken by persons occupying high posts is valid. All power vested in the authorities has to be discharged in accordance with the principles laid down by the Constitution and the other Statutes or Rules/Regulations governing the field. The judicial scrutiny of a decision does not depend on the rank or position held by the decision maker. The Court is concerned with the legality and validity of the decision and the rank of the decision maker does not make any difference. 47. The learned Single Judge had assessed the entire material available on record and so also closely scrutinized the materials as well as the contentious contentions taken by the learned Addl. Solicitor General on behalf of the respondent / Revenue and the reliances facilitated by the learned Senior Counsel Shri Kiran S. Javali for petitioners and thus had answered the points for determination in favour of the petitioners, who had initiated the writ petition ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... er section 153C, will be taken as year of search for purposes of clauses (a) and (b) of section 153A(1) by making reference to first proviso to section 153C(1) Held, yes Whether period of 6 years stipulated in section 153C has to be construed with reference to date of handing over of documents to Assessing Officer of assessee and not year of search Held, yes Whether recording of satisfaction note is pre-requisite and same must be prepared by Assessing Officer before he transmits records to other Assessing Officer who has jurisdiction over such other person under section 153C Held, yes On 25.10.2010, a search under Section 132 was carried in case of one R and various documents belonging to assessee were found and seized Consequently, Assessing Officer of searched person issued notice under section 153C against assessee for assessment years 2005-2006 to 2010-2011 and a notice under section 143(3) for assessment year 2011-12 Assessments were concluded and income of assessee was assessed Tribunal set aside assessment order and held that there was no satisfaction recorded by Assessing Officer of searched person, which is mandatorily required for issuing a notice under section 153C Wheth ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... view of all these findings, it is said that the appeals do not have any substance for seeking intervention as sought for by the appellant / Revenue. 54. The question as regards whether in an intra court appeal, a Division Bench could remit a writ petition in the matter of moulding the relief, it is relevant to refer to an Apex Court decision dated 31.07.2018 rendered in the case of ROMA SONKAR vs. MADHYA PRADESH STATE PUBLIC SERVICE COMMISSION ANR. (CIVIL APPEAL Nos. 7400- 7401/2018). The relevant paragraph 3 of the said order reads thus: 3. We have very serious reservations whether the Division Bench in an intra court appeal could have remitted a writ petition in the matter of moulding the relief. It is the exercise of jurisdiction of the High Court under Article 226 of the Constitution of India. The learned Single Judge as well as the Division Bench exercised the same jurisdiction. Only to avoid inconvenience to the litigants, another tier of screening by the Division Bench is provided in terms of the power of the High Court but that does not mean that the Single Judge is subordinate to the Division Bench. Being a writ proceeding, the Division Bench was called upon, in the intra ..... X X X X Extracts X X X X X X X X Extracts X X X X
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