TMI Blog2016 (12) TMI 1806X X X X Extracts X X X X X X X X Extracts X X X X ..... e income of the relevant assessment year has escaped assessment. Thus, the notice cannot be treated as without jurisdiction. Even otherwise, the petitioner would get full opportunity before the Assessing Officer to present his case as to why it is not a case of escapement of income. All the writ petitions being not maintainable against show cause notice deserve to be and are hereby dismissed. - WPT Nos. 163, 165 and 164 of 2016 - - - Dated:- 1-12-2016 - Prashant Kumar Mishra, J. For Appellant: S. Rajeshwara Rao and M.K. Sinha, Advs. For Respondents: Naushina Afrin Ali, Adv. ORDER Prashant Kumar Mishra, J. 1. The petitioner would assail the legality and val ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he petition against show cause notice is not maintainable because the officer has jurisdiction under Sections 147 and 148 of the Act, 1961 to initiate re-assessment proceeding whenever the income has escaped assessment. 4. Notice issued to the petitioner under Section 148 of the Act, 1961 for re-opening of assessment for assessing escaped assessment within the meaning of Section 147(2)(C)(i) records thus:- After receiving information from the DDIT (Inv.) - II Raipur case was selected for scrutiny u/s. 147 for the A.Y. 2008-09. Assessee has constructed of Commercial and Residential building from 2006-07 to 2010-11. Assessee has invested huge amount for construction. To know actual cost of the building case was ref ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sdiction. 7. In the case at hand, notice (Annexure-P/2) is not only on the basis of report of DVO, Jabalpur, but the Assessing Officer has issued notice by recording reason that in view of the report of DVO, he has reason to believe that the assessee has failed to disclose fully and truly all materials and hence chargeable to tax which has escaped assessment for the relevant financial year within the meaning of Section 147(2)(C)(i) of the Act, 1961. 8. In the matter of Commissioner of Income Tax and Others Vs. Chhabil Dass Agarwal, the Supreme Court was dealing with a case of re-assessment wherein the assessee was issued notice under Section 148 of the Act, 1961. After the assessment was completed, the assessee, in ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f in respect of any improper orders passed by the Revenue Authorities, and the assessee could not be permitted to abandon that machinery and to invoke the jurisdiction of the High Court under Article 226 of the Constitution when he had adequate remedy open to him by an appeal to the Commissioner of Income Tax (Appeals). The remedy under the statute, however, must be effective and not a mere formality with no substantial relief. In Ram and Shyam Co. v. State of Haryana {(1985) 3 SCC 267} this Court has noticed that if an appeal is from Caesar to Caesar's wife the existence of alternative remedy would be a mirage and an exercise in futility. 9. In the matter of Indo Asahi Glass Co. Ltd. Vs. ITO {(2002) 10 SCC 444} the Supr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... age of issuance of the notices under Section 153C, the assessee could have addressed his grievances and explained his stand to the Assessing Authority by filing an appropriate reply to the said notices instead of filing the Writ Petition impugning the said notices. It is settled law that when an alternate remedy is available to the aggrieved party, it must exhaust the same before approaching the Writ Court. In Bellary Steels and Alloys Ltd. v. CCT, (2009) 17 SCC 547, this Court had allowed the assessee therein to withdraw the original Writ Petition filed before the High Court as the said proceedings came to be filed against the show-cause notice and observed that the High Court should not have interfered in the matter as the Writ Petition w ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... not have entertained the Writ Petition and instead should have directed the assessee to file reply to the said notices and upon receipt of a decision from the Assessing Authority, if for any reason it is aggrieved by the said decision, to question the same before the forum provided under the Act. 12. In the case at hand, notice under Section 147(2)/148 of the Act, 1961 has been assailed only on the ground that the same is based on report of DVO, therefore, it is illegal and void. Jurisdiction of the Assessing Officer to issue notice has not been assailed on the ground that the notice is barred by limitation. As earlier discussed, notice is not based merely on the report of the DVO but having mentioned the same, the Assessing ..... X X X X Extracts X X X X X X X X Extracts X X X X
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