TMI Blog2019 (6) TMI 1182X X X X Extracts X X X X X X X X Extracts X X X X ..... nvalid merely by reason of mistake or defect i.e., mistake or defect of issuing it in a template and not scoring of the relevant ground and leaving out the applicable ground. If it is not a defect of scoring of the inapplicable ground it is a case of using the conjunction 'and' by scoring of 'or', if it is predicated on both grounds. If aforesaid position is clarified and thereafter the impugned SCN is carried to its logical end, it will satisfy all parameters and ingredients of NJP. This Court is reminded of the observation in Mumbai International Airport Private Limited Vs. Golden Chariot Airport and another [ 2010 (9) TMI 1153 - SUPREME COURT] where Hon'ble Supreme Court held that 'action of law is not a game of chess'' . Merely because the Revenue has made a move and there is an error in the move, there is nothing to show that no opportunity should be given to the Revenue to correct the error by issuing a corrigendum or addendum and then proceeding with the matter. After all it is not an irreversible move in a game of chess. This Court passes the following order: a) the impugned SCN being SCN dated 23.12.2016 bearing reference No.PA ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of IT Act obviously read with Section 271 of IT Act. 3. 'Show Cause Notice' shall hereinafter be referred to as 'SCN' for the sake of brevity, clarity and convenience. 4. This matter is listed under the caption 'FOR ADMISSION' today in the motion list. 5. Ms.Pushya Sitaraman, learned Senior Counsel on behalf of the counsel on record for the writ petitioner is before this Court. Mr.Naveen Durai Babu, learned Junior Standing Counsel for Income Tax accepts notice on behalf of both the respondents. To be noted, there are two respondents in the instant writ petition and both the respondents are official respondents. 6. In the aforesaid scenario, with the consent of learned counsel on both sides, the main writ petition itself is taken up. With the consent of both sides main writ petition is being heard out and the same is being disposed of. 7. Short facts shorn of unnecessary particulars and details or in other words facts that are imperative for appreciating this order are as follows: (a) the petitioner is engaged in the business of export of software and 'In ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... for the instant writ petition. However, as mentioned supra what has been assailed is impugned SCN, which is dated 23.12.2016. 8. Having set out short facts shorn of unnecessary particulars and details or in other words facts that are absolutely imperative for appreciating this order, this Court now proceeds to capture the submissions made by learned Senior Counsel for the writ petitioner. 9. Learned Senior Counsel for the writ petitioner assailed the impugned SCN on the grounds which can be summarised as below: (a) impugned SCN is in a template and therefore, it is not clear as to whether the impugned SCN has been issued on the basis that the writ petitioner has 'concealed particulars of income' or 'furnished inaccurate particulars' of such income. (b) in support of the proposition that 'concealing particulars of income' and 'furnishing of inaccurate particulars of income' are expressions which fall and operate in different realms Commissioner of Income Tax Vs. SSA's Emerald Meadows reported in (2015) 94 CCH 0334 KarHC , Commissioner of Income Tax Vs. S ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t rendered by a Division Bench of Karnataka High Court in Commissioner of Income Tax Vs. Manjunatha Cotton and Ginning Factory reported in (2013) 359 ITR 565 (Karn) . According to learned Senior Counsel, this Manjunatha Cotton and Ginning Factory is for the proposition that when a notice under Section 271(1)(c) of the IT Act is issued in printed form without specifically mentioning whether the ground is 'concealment of income' or 'furnishing of inaccurate particulars', such a notice does not satisfy the grounds which the noticee has to meet specifically and therefore should be construed to be vague. It was urged that no penalty can be imposed on the assessee on such a vague notice and that Karnataka High Court judgment i.e., in Manjunatha Cotton Principle buttress the submission. 14. This Court now proceeds to carefully consider the submissions made on both sides. 15. The proposition that the grounds of 'concealment of income' and 'furnishing of inaccurate particulars' qua Section 27(1)(c) of IT Act are clearly distinct expressions and that they fall under different realms admits of no exception and made two q ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... upreme Court in Union of India and others Vs. Kunisetty Satyanarayana reported in (2006) 12 SCC 28 is significant in this regard. Most relevant paragraphs in Kunisetty Satyanarayan are paragraphs 15 and 16 and the same read as follows: '15.Writ jurisdiction is discretionary jurisdiction and hence such discretion under Article 226 should not ordinarily be exercised by quashing a show-cause notice or charge-sheet. 16. No Doubt, in some very rare and exceptional cases the High Court can quash a charge-sheet or show-cause notice if it is found to be wholly without jurisdiction or for some other reason if it is wholly illegal. However, ordinarily the High Court should not interfere in such a matter.' 21. The rare and exceptional cases where a High Court will quash SCN has also been laid down in a long line of authorities and broadly they are cases (a) where SCN can be issued without jurisdiction by the authority B) where SCN reopens a well settled position of law c) where SCN has prejudged the issue and d) where SCN has been issued with malafides. 22. It is nobody's case before this Court that im ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ant paragraph in K.C.Mathew case is paragraph 10 and the same reads as follows: '10. In Satyawati Tondon the High Court had restrained further proceedings under Section 13(4) of the Act. Upon a detailed consideration of the statutory scheme under the SARFAESI Act, the availability of remedy to the aggrieved under Section 17 before the Tribunal and the appellate remedy under Section 18 before the Appellate Tribunal, the object and purpose of the legislation, it was observed that a writ petition ought not to be entertained in view of the alternate statutory remedy available holding: (SCC pp.123 128, Paras 43 55) 43. Unfortunately, the High Court overlooked the settled law that the High Court will ordinarily not entertain a petition under Article 226 of the Constitution if an effective remedy is available to the aggrieved person and that this Rule applies with greater rigour in matters involving recovery of taxes, cess, fees, other types of public money and the dues of banks and other financial institutions. In our view, while dealing with the petitions involving challenge to the action taken for recovery of the public dues, etc., the Hi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hariot Airport and another reported in (2010) 10 SCC 422, where Hon'ble Supreme Court held that 'action of law is not a game of chess'' . Merely because the Revenue has made a move and there is an error in the move, there is nothing to show that no opportunity should be given to the Revenue to correct the error by issuing a corrigendum or addendum and then proceeding with the matter. After all it is not an irreversible move in a game of chess. 29. In the light of the aforesaid discussion, this Court passes the following order: a) the impugned SCN being SCN dated 23.12.2016 bearing reference No.PAN:AAFCA0638J shall be kept in abeyance for a period of three weeks from the date of receipt of a copy of this order. b) within the aforesaid three weeks, second respondent shall issue a corrigendum/addendum/errata to the impugned SCN clearly setting out the ground/s on which impugned SCN w as issued i.e., as to whether it has been issued on the ground that particulars have been concealed or on the ground that inaccurate particulars of income have been furnished or both. c) aforesaid addendum/corrigendum/er ..... X X X X Extracts X X X X X X X X Extracts X X X X
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