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TMI Blog2025 (1) TMI 38X X X X Extracts X X X X X X X X Extracts X X X X ..... f the fact that the grounds/reasons for re-opening of assessment for said assessment year already stood concluded vide Assessment Order dated 28.12.2017 under Section 143 read with Section 144 of the Act. (ii) For issuance of an appropriate writ(s)/order(s)/ direction(s), including a writ of Certiorari for quashing/setting aside the Order dated 28.12.2022 (Annexure-17) passed under Section 148A (d) of the Act in respect of A.Y. 2015-16 as being wholly arbitrary, unjust and illegal, as the reasons provided for re-opening of assessment for said assessment year already stood concluded vide Assessment Order dated 28.12.2017 under Section 143 read with Section 144 of the Act. (iii) For issuance of an appropriate writ(s)/order(s)/direction(s) including a writ of Declaration declaring that initiation of re-assessment proceedings in respect of A.Y. 2015-16 vide issuance of Notice dated 28.12.2022 under Section 148 on the grounds which already stood concluded vide Assessment Order dated 28.12.2017 passed under Section 143 read with Section 144 of the Act, and which were thereafter confirmed vide Order dated 29.3.22 passed under Section 147 read with Section 143(3) of the Act is wholly i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... triction upon the High Court in exercising the power conferred under Article 226 of the Constitution of India and it can be exercised depending upon the facts and circumstances available in the case. 10) The law has been laid down that in which case the power under Article 226 of the Constitution of India can be exercised. The deliberation on this issue has been dealt with by the Hon'ble Apex Court in the case of Whirlpool Corpn. Vs. Registrar of Trade Marks, (1998) 8 SCC 1. It is evident from the aforesaid judgment as per paragraphs 14 and 15 that in the case of jurisdictional error or if there is violation of principles of natural justice, then, even if the alternative remedy is available under the statute, the Writ Court can exercise its power under its extraordinary jurisdiction conferred under Article 226 of the Constitution of India. 11) Now this Court is proceeding to examine the issue of maintainability on the basis of the factual aspects as also the argument advanced on behalf of learned counsel for the parties. 12) The question of jurisdictional error has been agitated mainly on the ground that there is change in opinion. The jurisdictional error goes to the root of th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 to the questions that are raised in the proposed reassessment proceedings. 17) It is, thus, evident that the said paragraph contemplates of two parameters. The first is that the change of opinion is to be verified from the records regarding the assessment which has been made on earlier occasion is proper one, or the subsequent assessment is the proper one. If such a situation is there, then the same is to be deliberated upon by the authority by going through the documents available on record and on consideration of the rival submissions advanced on behalf of the parties, meaning thereby, the same pertains to the adjudication of fact. 18) So far as the second part is concerned, the Hon'ble Apex Court has observed that while considering the change in opinion, the order must not be non-speaking and based upon non-speaking order, there ca ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... said that this Court has recognised some exceptions to the rule of alternative remedy i.e. where the statutory authority has not acted in accordance with the provisions of the enactment in question, or in defiance of the fundamental principles of judicial procedure, or has resorted to invoke the provisions which are repealed, or when an order has been passed in total violation of the principles of natural justice, the proposition laid down in Thansingh Nathmal case [AIR 1964 SC 1419] , Titaghur Paper Mills case [Titaghur Paper Mills Co. Ltd. v. State of Orissa, (1983) 2 SCC 433 : 1983 SCC (Tax) 131] and other similar judgments that the High Court will not entertain a petition under Article 226 of the Constitution if an effective alternative remedy is available to the aggrieved person or the statute under which the action complained of has been taken itself contains a mechanism for redressal of grievance still holds the field. Therefore, when a statutory forum is created by law for redressal of grievances, a writ petition should not be entertained ignoring the statutory dispensation. 16. In the instant case, the Act provides complete machinery for the assessment/reassessment of t ..... X X X X Extracts X X X X X X X X Extracts X X X X
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