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TMI Blog2024 (6) TMI 658X X X X Extracts X X X X X X X X Extracts X X X X ..... f. Appears that the petitioner never challenged either the re-assessment notice, or the reasons to believe as furnished to the petitioner, or the sanction granted u/s 151 of the Act on either jurisdictional grounds, or on any other grounds; whatsoever, and now when the re-assessment proceedings stands concluded resulting in passing of assessment orders, the petitioner without preferring the statutory appeal as per the Act, after the expiry of prescribed limitation period, has invoked the writ jurisdiction of this Court. The instant matters require factual adjudication which is beyond the scope of proceedings under Article 226 of the Constitution of India. Such factual aspects being whether at all there was delay in statutory audit by the State Government or whether at all the State Government failed to appoint auditors under the Jharkhand Co-operative Societies Act for the A.Y. 2013-14 and A.Y. 2014-15, or whether petitioner at all requested the State Government for statutory audit under the Jharkhand Co-operative Societies Act; whether petitioner prepared statement of accounts, etc. and submitted to the Registrar under Rule 58 of the Jharkhand Co-operative Societies Rules, 1959. A ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nurag Vijay, Jr. S.C. JUDGMENT PER DEEPAK ROSHAN, J: Heard learned counsel for the parties. 2. Since all these writ applications involve common question of law and are of same Assessee for different assessment years; as such with consent of the parties all were heard together and disposed of by this common order. 3. The aforesaid writ petitions which pertains to A.Y. 2013-2014 and 2014-2015; have been preferred by the Petitioner-Assessee, challenging respective notices issued u/s 148 of the Income-tax Act, 1961 (herein after to be referred as the Act ), the respective assessment orders passed u/s 147 read with section 144B of the Act, the consequent notices for demand, the notice for penalty u/s 271 (1) (c) of the Act, the penalty orders u/s 271 (1) (c) of the Act and consequent demand notices for penalty, for both the assessment years. 4. The brief fact of the case is that the petitioner is a Co-operative Society registered under the Co-operative Societies Act. The case of the petitioner is that he has maintained proper books of accounts in accordance with Section 44 AA of the Act and has got the same audited by his Chartered Accountant. The petitioner had filed the audit report f ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... elevant assessment year, the Assessee was subjected to scrutiny assessment u/s 143 (3) of the Act and hence as per the first proviso to the un-amended section 147 of Act, in absence of any omission or failure on part of the Assessee to make a disclosure, no re-assessment proceedings can be initiated after lapse of four years from the end of the relevant assessment year. He further submits that re-assessment resorted to by the Revenue is based on change of opinion since in garb of re-assessment, the Revenue is seeking to disallow two deductions which were allowed in the original assessment proceedings and hence, there is no reason to believe for any income escaping assessment and hence the very assumption of jurisdiction for re-assessment is wholly illegal and bad in law. He further submits that the re-assessment is based on mechanical grant of sanction by the superior authority and hence is illegal and without jurisdiction. The assessment which stood merged in the order of Commissioner of Income-tax (Appeals) cannot be re-opened. On merits of re-assessment proceedings, it is the case of the petitioner that in absence of stipulation for obtaining a statutory audit under the Jharkhan ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... essing Officer reported in 2023 SCC online SC 1164; wherein at para 37 and 38 it has been held as under:-- 37. In Mavilayi Service Co-operative Bank, it has been observed that Section 80P of the Act is a beneficial provision which was enacted in order to encourage and promote the growth of the co-operative sector generally in the economic life of the country and therefore, has to be read liberally in favour of the assessee. That once the assessee is entitled to avail of deduction, the entire amount of profits and gains of business that are attributable to any one or more activities mentioned in subsection (2) of Section 80P must be given by way of deduction vide Citizen Co-operative Society. This is because sub-section (4) of Section 80P is in the nature of a proviso to the main provision contained in sub-sections (1) and (2) of Section 80P. The proviso excludes co-operative banks, which are co-operative societies which must possess a licence from the Reserve Bank of India to do banking business. In other words, if an entity does not require a licence to do banking business within the definition of banking under Section 5 (b) of the BR Act, 1949, then it would not fall within the s ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r. Vaibhav learned Sr. Standing Counsel assisted by Mr. Anurag Vijay, Advocate representing the respondents has submitted that the instant writ petitions ought not to be entertained as the petitioner did not avail the statutory remedy of appeal as contained in the Act. It has been contended that the Act is a complete code in itself and contains a structured mechanism for challenging assessment /penalty orders. The petitioner, neither availed the remedy of appeal under the Act, nor has the petitioner in the entire writ petition even whispered any reason either for not availing the appellate remedy, or, as to why the appellate remedy available to the Petitioner under the Act is not an efficacious remedy. It has been further submitted that the Petitioner has invoked the writ jurisdiction of this Court only after expiry of the period of limitation for filing appeal as prescribed under the Act. 10. It has been submitted by Mr. Vaibhav that the initiation of reassessment proceedings is in accordance with law and is not hit by the limitation of 4 years as prescribed in the first proviso to section 147 (un-amended) of the Act as the facts in this case clearly demonstrate that there was fai ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r on any other grounds; whatsoever, and now when the re-assessment proceedings stands concluded resulting in passing of assessment orders, the petitioner without preferring the statutory appeal as per the Act, after the expiry of prescribed limitation period, has invoked the writ jurisdiction of this Court. 12. The instant matters require factual adjudication which is beyond the scope of proceedings under Article 226 of the Constitution of India. Such factual aspects being whether at all there was delay in statutory audit by the State Government or whether at all the State Government failed to appoint auditors under the Jharkhand Co-operative Societies Act for the A.Y. 2013-14 and A.Y. 2014-15, or whether petitioner at all requested the State Government for statutory audit under the Jharkhand Co-operative Societies Act; whether petitioner prepared statement of accounts, etc. and submitted to the Registrar under Rule 58 of the Jharkhand Co-operative Societies Rules, 1959. All these facts were never brought on record by the petitioner in course of the re-assessment proceedings. The aforesaid factual aspects do not make this matter fall within any of the exceptions which would justify ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... has rightly dismissed the writ petition. (iii) In the case of Assistant Commissioner v. Glaxo Smith Kline Consumer Health Care Ltd. reported in [(2020) 19 SCC 681 , the Hon ble Apex Court in paragraphs 14, 15, 19, 22 25 has held as under:- 14. In the backdrop of these facts, the central question is: whether the High Court ought to have entertained the writ petition filed by the respondent? As regards the power of the High Court to issue directions, orders or writs in exercise of its jurisdiction under Article 226 of the Constitution of India, the same is no more res integra. Even though the High Court can entertain a writ petition against any order or direction passed/action taken by the State under Article 226 of the Constitution, it ought not to do so as a matter of course when the aggrieved person could have availed of an effective alternative remedy in the manner prescribed by law...... 15. We may usefully refer to the exposition of this Court in Titaghur Paper Mills Co. Ltd. Anr. Vs. State of Orissa Ors., wherein it is observed that where a right or liability is created by a statute, which gives a special remedy for enforcing it, the remedy provided by that statute must only b ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ere a person cannot file any case after the period of limitation is also not acceptable to this court, inasmuch as, the aforesaid case may be referred in the case of GST but the principle laid down by the Hon ble Apex Court is squarely applicable in the instant case. 13. Further, on the question of change of opinion, the Hon ble Apex Court in the case of ITO versus Techspan India Pvt. Ltd. reported in (2018) 6 SCC 603, has held in paragraph 18 as under:- 18. Before interfering with the proposed re-opening of the assessment on the ground that the same is based only on a change in opinion, the court ought to verify whether the assessment earlier made has either expressly or by necessary implication expressed an opinion on a matter which is the basis of the alleged escapement of income that was taxable. If the assessment order is non-speaking, cryptic or perfunctory in nature, it may be difficult to attribute to the assessing officer any opinion on the questions that are raised in the proposed reassessment proceedings. Every attempt to bring to tax, income that has escaped assessment, cannot be absorbed by judicial intervention on an assumed change of opinion even in cases where the o ..... X X X X Extracts X X X X X X X X Extracts X X X X
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