TMI Blog2013 (6) TMI 11X X X X Extracts X X X X X X X X Extracts X X X X ..... ther of exceptions as provided for in the case of Whirlpool Corporation v. Registrar of Trade Marks, Mumbai and others, (1998 (10) TMI 510 - SUPREME COURT) for exercise of writ jurisdiction. The explanation given to the queries is sufficient or not lies in the realm of the Assessing Authority or the Appellate Authority but certainly it does not lie within the realm of the writ jurisdiction. The Income Tax Authorities are well trained to appreciate the intricacies of accounting and no reason not to relegate the petitioner to statutory forum. Thus availability of the alternative remedy by way of appeal before the Tribunal, the present writ petition declined. - Writ Tax No. -546 of 2013 - - - Dated:- 24-5-2013 - Prakash Krishna And Manoj Kumar Gupta,JJ. For the Petitioner : Rakesh Ranjan Agrawal,Suyash Agarwal For the Respondent : C. S. C. ORDER (Delivered by Prakash Krishna, J) The petitioner, a company, incorporated under the Companies Act is carrying on the business of manufacture and sale of Ata, Maida and Sooji. The dispute relates to the Assessment Year 2008-2009 for which the petitioner filed its return of income on 27th of September, 2008 declaring an ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... proceedings consequent upon the order of remand as in the present case the Commissioner of Income Tax restored the matter back to the Assessing Officer. The Assessing Officer is under legal obligation to complete the assessment proceedings in view of section 153 (2A) of the Income Tax Act within a period of one year. Therefore, the submission is that the writ court should exercise its discretion in entertaining the present petition. In reply, the learned counsel for the department submits that the disputed and complicated questions of fact are involved in the present writ petition. These questions can more appropriately be addressed by the statutory forum i.e. the Income Tax Appellate Tribunal in the present case being an Appellate Authority. On merits, it was submitted that the findings recorded in the impugned order are well considered findings. Even otherwise also, the petitioner cannot be treated as an aggrieved person as the matter has been restored back to the Assessing Authority to pass a fresh assessment order after giving an opportunity of hearing to the petitioner. There is no concluded assessment and the Assessing Officer has been directed to carry out an appropriate v ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... expenses of packing material debited by the assessee at Rs.4761348/- are divided by 365 days, average closing stock for 10 days comes to Rs.130448/- which is estimated at the end of the relevant financial year. Thus there is undervaluation of closing stock. In view of this, an addition of Rs.130448/- is being made to the income of the assessee on account of closing stock of packing material not shown by the assessee. (Addition: Rs.130448/-) The total income of the assessee is, thus, computed as under: Total income as declared by the assessee as per computation of income Rs. 2823094 Add: i. Addition as discussed above Rs. 130448 Total income Rs. 2953542 Rounded off Rs. 2953540 Assessed on total income of Rs.2953540/-. Calculate tax accordingly. Charge interest u/s 234B, 234C and 234D of the I.T. Act. Withdraw excess interest u/s 244A. Give credit of prepaid taxes. Issue notice of demand and challan." Thereafter, the Assessing Authority has computed the income. Evidently, the assessment order is completely silent and is bereft of any discussion on material points with regard to the creditors and trade creditors in particular. Assuming what the petitioner says is corr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... te, without holding necessary inquiry it is sufficient to hold that the assessment order is erroneous. The aforesaid decision has been followed by the Apex Court in Tara Devi Agrawal Vs. Commissioner of Income Tax, (1973) 88 ITR. The facts of this case are interesting. Here, it was contended that the assessee made a voluntary return of her income which cannot be said prejudicial to the Revenue. Repelling the said argument, the Apex Court has held that even where income has not been earned and is not assessable merely because the assessee wants it to be assessed in his or her end in order to assist someone else who would have been assessed to a larger amount, the assessment so made can certainly be erroneous and prejudicial to the interest of the revenue. In GEE VEE Enterprizes Vs. Additional Commissioner of Income Tax, (1975) 99 ITR 375 following the aforesaid two judgments of the Apex Court it has been held that the position and function of the Income Tax Officer is very different from that of a Civil Court. The statements made in a pleading proved by minimum amount of evidence may be accepted by a Civil Court in absence of any rebuttal. The Civil Court is neutral. It simply g ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... or the respondents to the assessment order for the assessment year which is enclosed in the connected writ petition ( has been dismissed on 15th of May, 2013 on the ground of availability of statutory remedy) wherein on examination, it was found by the Assessing Authority that the assessee was not able to prove the genuineness of certain cash credits. Be that as it may, in view of the order which we are proposing to pass, it is not necessary to dwell upon the merits of the case. Prima facie findings have been recorded by us just to meet the argument of the petitioner. Sri Rakesh Ranjan Agrawal tried to justify the assessment order by referring the reply to the show cause notice and expected that the writ court should examine the veracity and correctness of the reply, which we are afraid is not proper exercise of writ jurisdiction, specially when the statutory forum in the form of Income Tax Appellate Tribunal has been already provided for. We refrain ourselves to express any opinion on the merits of the case and have indicated only some of the features of the case to show that the exercise of jurisdiction by the Commissioner of Income Tax under section 263 is perfectly justified ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... be availed of. This rule was stated with great clarity by Willes, J. in Wolverhampton New Waterworks Co. v. Hawkesford in the following passage: "There are three classes of cases in which a liability may be established founded upon statute. . . . But there is a third class, viz. where a liability nor existing at common law is created by a statute which at the same time gives a special and particular remedy for enforcing it. . .the remedy provided by the statute must be followed, and it is not competent to the party to pursue the course applicable to cases of the second class. The form given by the statute must be adopted and adhered to." The rule laid down in this passage was approved by the House of Lords in Neville v. London Express Newspapers Ltd. and has been reaffirmed by the Privy Council in Attorney-General of Trinidad and Tobago v. Gordon Grant Co. Ltd. and Secretary of State v. Mask Co. (AIR 1940 PC 105). It has also been held to be equally applicable to enforcement of rights, and has been followed by this Court throughout. The High Court was therefore justified in dismissing the writ petitions in limine." 21. The views expressed in Titaghur Paper Mills Co. Ltd. ..... X X X X Extracts X X X X X X X X Extracts X X X X
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