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TMI Blog2025 (3) TMI 879X X X X Extracts X X X X X X X X Extracts X X X X ..... enter Trust [2023 (9) TMI 1324 - CALCUTTA HIGH COURT] the order was passed by the appellate authority and the Hon'ble High Court exercised its power under Section 260A of the Income Tax Act and not under Article 226 of the Constitution of India vested in the High Court. As alternative and efficacious remedy is available whether the High Court should exercise its jurisdiction under Article 226 of the Constitution of India - Needless to say that very recently in Bank of Baroda v/s Farooq Ali Khan [2025 (2) TMI 1021 - SUPREME COURT] it has been observed that the statutory Tribunals are constituted to adjudicate and determine certain questions of law and fact, the High Court should not substitute themselves as the decision-making authority while exercising their powers of judicial review. Having considered that the petitioner has directly approached the jurisdiction of this Court under Article 226 of the Constitution of India and called upon this Court to adjudicate issues relating to facts and the application of law on the said set of facts, it is of the opinion that the present writ petition is not maintainable as an alternative and efficacious remedy is available to the petitioner ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... dated 12th August,2022 for the assessment year 2018-19 as well as the computation sheets and the demand notices issued along with the same do not bear any DIN. The absence of DIN according to the petitioner makes the order nullity as the CBDT Circular No.19/2019 dated 14th August 2019, mandatorily requires generation, allotment and quoting of DIN in notices, orders, summons, letters and other correspondence issued by the Income Tax Department. Additionally, it was also canvassed that on 22nd November 2022, the website of the Income Tax Department clearly showed that no assessment order was passed and on 23rd January 2023 also the website showed that no assessment order was passed and the proceedings were stated to be open on these dates. On 6th February 2023, when the petitioner accessed the portal,it found that the proceedings were shown as closed and the option to download the closure order was provided. This according to the petitioner shows that the order dated 12th August, 2022 was passed manually and did not bear a DIN and was not uploaded in the system at least till 23rd January 2023. The same was not either physically or electronically served on the petitioner and it was a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s the order was uploaded on the portal only on 23rd of January 2023, the same was barred by limitation. 7. It was further submitted that Section 153(1) of the Act provides that no order of assessment shall be made under Section 143 at any time after the expiry of the period specified therein. It is well settled that an assessment order can be regarded as "made" when it is signed and despatched and isout of the control of the Assessing Officer. This is normally done, when the same order or decision is made public or notified in some form or when it can be said to have left the office of the Assessing Officer. Reference was made to Collector of Central Excise, Madras vs. M.M. Rubber (1992) 1992 taxmann.com 555 (SC) and it was reiterated by the petitioner that since the order was not physically served and was uploaded in the portal on 23rd of January 2023, the assessment order was therefore barred by limitation. Reference was also made to State of AP vs. M. Ramakishtaiah& Co. (1994) SCC Online SC 3. 8. A further issue which was canvassed before this Court in respect of the assessment order being invalid and bad-in-law is that it was passed without complying with the mandatory proce ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ions, as it thinks fit, for the guidance of the Assessing Officer to enable him to complete the assessment. Sub-Section (10) provides that every direction issued by the Dispute Resolution Panel shall be binding on the Assessing Officer and Sub-Section (12) provides that no direction under Sub-Section (5) shall be issued after nine months from the end of the month in which the draft order is forwarded to the eligible assessee. Sub-Section (13) provides that on receipt of the directions issued under sub-Section (5), the Assessing Officer shall in conformity with the directions, complete the assessment without providing any further opportunity of being heard to the assessee, within one month from the end of the month in which such direction is received. It was contended that the assessment order dated 12th August, 2022 for the assessment year 2018-2019 was not passed in conformity with the mandatory procedure laid down in Section 144C of the Act. As such it is invalid and bad-in-law. Reliance was placed upon the following judgments:- (a) Vijay Television (P) Ltd. vs. DRP (2014) 46 taxmann.com 100 (Mad); (b) International Air Transport Association vs. DCIT (2016) 68 taxmann.com 24 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... l Corpn. Ltd. (2003) 2 SCC 107 and attention of the Court was drawn to the observations of the Hon'ble Apex Court, which is as follows: "In an appropriate case, in spite of availability of the alternative remedy, the High Court may still exercise its writ jurisdiction in a least three contingencies (i) where the writ petition seeks enforcement of any of the fundamental rights (ii) where there is failure of principles of natural justice or (iii) where the orders or proceedings are wholly without jurisdiction or the vires of an Act is challenged". 14. Learned advocate for the Respondent by relying upon the aforesaid two judgments summarized the duties of the Hon'ble High Court under Article 226 of the Constitution of India and submitted as follows: (i) The power under Article 226 of the Constitution to issue writs can be exercised not only for the enforcement of fundamental rights, but for any other purpose as well. (ii) The High Court has the discretion not to entertain a writ petition. One of the restrictions placed on the power of High Court is where an effective alternate remedy is available to the aggrieved person; (iii) Exceptions to the rule of alternative ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Supreme Court in (SLP (C) D. No. 27852/24). 17. It was emphasized that the writ petition has been filed to avoid payment of 20% of the outstanding tax demand . 18. Attention was also brought to the notice of the Court in respect of Section 153 of the Income Tax Act including explanations referred to therein, where the Central Government by Taxation and Other Laws (Relaxation and Amendment of Certain Provisions) Act, 2020 extended the time limit for completion of Assessment under Section 143 (3) of the Income Tax Act, 1961 to 30th September 2021. Explanation 1 of Section 153 according to the learned advocate states that the period commencing from the date on which a reference or first of the references for exchange of information is made by an authority competent under an agreement referred to Section 90 or Section 90A and ending with the date on which the information requested is last received by the Principal Commissioner or Commissioner or a period of one year, whichever is less shall be excluded. As such as per explanation 1 of Section 153 of the Income Tax Act, due date for completion of Assessment got extended by one year from the due date i.e. 30th September, 2021 as presc ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... anvassed, I am of the view that the same needs to be dealt with. Learned advocate on behalf of the petitioner stressed that the judgment relied upon in Whirlpool Corporation (supra)referred by the Respondent relate to the issue of jurisdiction. According to the learned advocate since limitation is a question of jurisdiction, the petitioner is entitled to invoke the powers vested in the High Court under Article 226 of the Constitution of India without approaching the statutory authorities. I have considered such submissions on the issue relating to limitation and is of the view that the question of limitation involves mixed question of facts and law. As such, summarily considering the same only on affidavits may not be appropriate in the background of the facts and circumstances of the case. Such proposition has been laid down by the Hon'ble Supreme Court in the following judgments: Charminar Cooperative Urban Bank Ltd. v. Mohan Reddy, (2008) 17 SCC 743; Topline Shoes Ltd. v. Punjab National Bank, (2022) 17 SCC 416; Nusli Neville Wadia v. Ivory Properties, (2020) 6 SCC 557. 21. The next issue which has been canvassed by the petitioner relates to DIN being absent in the asses ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... dues are a code unto themselves inasmuch as they not only contain comprehensive procedure for recovery of the dues but also envisage constitution of quasi-judicial bodies for redressal of the grievance of any aggrieved person. Therefore, in all such cases, the High Court must insist that before availing remedy under Article 226 of the Constitution, a person must exhaust the remedies available under the relevant statute. 44. While expressing the aforesaid view, we are conscious that the powers conferred upon the High Court under Article 226 of the Constitution to issue to any person or authority, including in appropriate cases, any Government, directions, orders or writs including the five prerogative writs for the enforcement of any of the rights conferred by Part III or for any other purpose are very wide and there is no express limitation on exercise of that power but, at the same time, we cannot be oblivious of the rules of self-imposed restraint evolved by this Court, which every High Court is bound to keep in view while exercising power under Article 226 of the Constitution. 45. It is true that the rule of exhaustion of alternative remedy is a rule of discretion and not ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... . In the aforesaid judgment the Hon'ble Apex Court relied upon a previous judgment of Hon'ble Supreme Court in Commissioner of Income Tax & Ors. - versus- Chhabil Dass Agarwal, (2014) 1 SCC 603, wherein it was deprecated that where efficacious alternative remedy is available in the statutory forum for redressal of grievances, writ petition should not be entertained ignoring the said statutory dispensation. Paragraphs 15, 16 & 17 are relevant for the present case which is as follows:- "15. Thus, while it can be 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 petitio ..... X X X X Extracts X X X X X X X X Extracts X X X X
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