TMI Blog2006 (12) TMI 72X X X X Extracts X X X X X X X X Extracts X X X X ..... g to revise the assessment, since the first respondent considered that the grant of deduction at 10% for personal supervision is erroneous and prejudicial to the interest of the Revenue. The said notice was received by V.Selladurai, the son-in-law of the petitioner (Assessee) on March 11, 2006 and he by his letter dated March 20, 2006 informed the first respondent that since the Assessee is in abroad the letter was received by him and contents of the letter were conveyed to his father-in-law (Assessee) and as instructed by his father-in-law, he is seeking one month time to file his objections since they have to meet their Auditor and obtain his advice. The said V.Selladurai by a communication dated March 27, 2006 addressed to the first respondent informed him that since the assessee's power for authorising the Auditor to appear in the case is not received, he has been instructed by his father-in-law to explain the position and seek time. In the said communication, objections have been raised for revising the assessment. 3. After considering the objections the first respondent set-aside the assessment with a direction to the second respondent to obtain a technical estimation ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e matter is still pending before the Assessing Officer and the assessment has not been completed and no tax has been demanded from the assessee so far. Therefore, it would not cause any hardship to the assessee and the assessee has every right to produce any form of evidence and details before the Assessing Officer. In case, the petitioner is aggrieved by the order, he could have preferred an appeal before the Income-Tax Appellate Tribunal, instead of invoking the Writ Jurisdiction of the High Court. 6. Heard Mr. K. Soundararajan, learned counsel for the petitioner and Mr. J.Ravikumar, Learned Standing Counsel for the respondents. 7. The learned counsel for the petitioner submitted that the first respondent has passed the impugned order with a direction to value the property by the Valuation Officer and according to the learned counsel the same could not be done by the second respondent in view of the specific bar imposed under Section 142-A of the Act. He further submitted that the order passed by the first respondent is opposed to principles of natural justice as no opportunity of personal hearing has been given to the petitioner as contemplated under Section 263(1) of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on-in-law has signed on his behalf and all available objections have been put forth to the show cause notice issued by the first respondent and a personal hearing also has been provided to the petitioner through his son-in-law and therefore the contention of the petitioner that the principles of natural justice have been violated and no personal hearing was afforded as contemplated in Section 263 of the Act is untenable. 9. The Learned Standing Counsel for the respondents further submitted that the first respondent has only set-aside the assessment order and remanded the matter back to the second respondent and hence the petitioner can put forth his objections before the second respondent and claim deduction from the estimated cost of construction for the personal supervision or in the alternative, the petitioner if agreed by the impugned proceedings, can prefer an appeal to the Income-Tax Appellate Tribunal and further submitted that no prejudice will be caused to him if the writ petition is not entertained. The Learned Standing Counsel relied on a decision rendered in the case of Dr. K.Nedunchezhian Vs. Deputy CIT reported in [2005] 279 I.T.R. 342 (Mad) and submitted th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s protest before the ITO, and allowed an assessment order to be made in the normal course. In an application under Section 146 against the assessment order, it would have been open to him to urge that the notice was unreasonable and invalid and he was prevented by sufficient cause from complying with it and, therefore, the assessment order should be cancelled. In that event, the fresh assessment made under Section 146 would not be fettered by the bar of limitation. Section 153(3)(i) removes the bar. But the appellant preferred the constitutional jurisdiction of the High Court under Article 226. If no order was made by the High Court directing a fresh assessment, he could contend, as is the contention now before us, that a fresh assessment proceeding is barred by limitation. That is an advantage which the appellant seeks to derive by the mere circumstance of his filing a writ petition. It will be noted that the defect complained of by the appellant in the notice was a procedural lapse at best and one that could be readily corrected by serving an appropriate notice. It was not a defect affecting the fundamental jurisdiction of the ITO to make the assessment. In our opinion, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... mmission [1954] 25 I.T.R. 167, Sangram Singh Vs. Election Tribunal Kotah A.I.R. 1955 S.C. 45, Union of India Vs. T. R. Varma A.I.R. 1957 S.C. 882, State of U.P. Vs. Mohammad Nooh A.I.R. 1958 S.C. 86 and K. S.Venkataraman and Co. (P.) Ltd. Vs. State of Madras [1966] 17 S.T.C. 418 ; (1966) 60 I.T.R. 112, A.I.R. 1966 S.C. 1089, held that Article 226 of the Constitution confers on all the High Courts a very wide power in the matter of issuing writs. However, the remedy of writ is an absolutely discretionary remedy and the High Court has always the discretion to refuse to grant any writ if it is satisfied that the aggrieved party can have an adequate or suitable relief elsewhere. The Court, in extraordinary circumstances, may exercise the power if it comes to the conclusion that there has been a breach of principles of natural justice or procedure required for decision has not been adopted". 24. Where under a Statute there is an allegation of infringement of fundamental rights or when on the undisputed facts the taxing authorities are shown to have assumed jurisdiction which they do not possess can be the grounds on which the writ petitions can be entertained. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ke the provisions contained in Section 142-A of the Act and therefore this writ petition cannot be entertained on the ground of want of authority on the part of the first respondent. As far as the question of violation of principles of natural justice is concerned, it has to be pointed out that the petitioner's son-in-law has in his communication dated March 27, 2006 raised all necessary objections and has sought for adjournment, on the ground that the petitioner is not available in India, to a date beyond March 31, 2006 and if that request had been acceded to by the first respondent, then the bar of limitation as provided for in Section 263 (2) of the Act will come into operation, which would have resulted in causing loss to the Revenue and the petitioner would have gained an undue advantage. Only after taking into consideration of the fact that loss will be caused to the Revenue and undue advantage will be gained by the petitioner the first respondent has rejected the request for adjournment but at the same time an opportunity of being heard had been afforded to the petitioner through his son-in-law. In fact all objections have been put forth by the petitioner through his son- ..... X X X X Extracts X X X X X X X X Extracts X X X X
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