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2019 (4) TMI 864 - HC - Income TaxJurisdiction in writ proceedings - challenge of order of assessment and Tax Recovery proceedings - invalid service of notices - service of attachments and auction proceedings - HELD THAT:- The very question of validity or otherwise of service the notices of assessment would require detail examination of facts on record. The question of validity does not rest only on legal contentions. It would require a detail examination of facts, which must be done by the departmental authorities in statutory Appeals provided under the Act. It is well settled that when question of law and facts arises, the High Court in exercise of its writ jurisdiction would be slow in interfering with the orders passed by the competent authority. Availability of alternative efficacious remedy would be a ground to refuse to entertain the writ petition directly aimed at an order of assessment. When a taxing statute provides for statutory remedies, this Court would be slow in by passing such remedies and entertaining the writ petition directly aimed at the order of assessment. Additionally, the Petitioner's challenge to the order of assessment would necessarily have the element of challenge on merits. This would be in addition to the Petitioner's contention regarding invalid service of notices. Any challenge to the order of assessment on merits should be ordinarily allowed to be examined by the Commissioner Appeals in whom statutory appellate powers have been vested under the Act. Lastly, the Petitioner has not even formally challenged the assessment orders. The Petitioner has filed the Petition straight away contending that it did not have copies of assessment orders, neither the order dated 07/03/2019. Therefore it had asked the department to produce copies of such orders, which along with affidavit-in-reply, have been filed. The Petitioner has not sought any amendment to the Petition bringing formal challenge to such assessment orders. This is a purely technical ground and is mentioned only for the purpose of bringing the correct stage of the pleadings on record. Otherwise, this is not a prime ground on which we propose to relegate the Petitioner to appellate remedy. The entire case of the Petitioner to oppose the auction, as noted revolves around two elements; namely invalid assessment orders and questionable ownership of the paintings and artworks. We have dealt with both these aspects and therefore do not find it appropriate to either set aside or quash the auction proceedings on this ground. Petitioner is in the business of buying and selling paintings and artworks. The Petitioner does not claim any particular attachment over any of the painting or artwork. As noted earlier, the Petitioner has not challenged the valuation of these articles. Under such circumstances, even if the Petitioner were to ultimately succeed in Appeal proceedings, the amount recovered by the tax department through auction sale, can always be returned to the Petitioner with interest. In other words, by not interfering at this stage, we have not put the Petitioner to any irreversible situation. If the Petitioner ultimately succeeds in Appeal, subject to further Appeals the department would undoubtedly have to return the sale proceeds received through the auction. Petitioner has referred to several judgment in support of her contentions. These judgments mainly touch in the aspect of valid service of notice and resignation of a Director of the Company. However, since we have not finally decided either of these issues, it is not necessary to dwelve into these judgments. Under such circumstances, both the prayers of the Petitioner are refused. If the Petitioner files Appeals against the assessment orders, latest by 20/04/2019, the Appellate Commissioner shall hear such Appeals on merits, without reference to the limitation. We clarify that all the contentions of both the sides, in relation to such orders of assessment including the question of validity of assessment notices, are kept open. Petition is disposed of.
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