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2016 (3) TMI 594 - PUNJAB AND HARYANA HIGH COURT

2016 (3) TMI 594 - PUNJAB AND HARYANA HIGH COURT - TMI - Revision u/s 263 to revise the reassessment order - as separate books of account were not being maintained in respect of MBF unit and therefore the said unit was not eligible for deduction under section 80IB - Held that:- The petitioner has a statutory efficacious/alternative remedy of appeal before the Tribunal under section 253(1) of the Act.

Thus the petitioner has a statutory efficacious/alternative remedy of appeal before t .....

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dated 4.3.2013 passed under section 147 of the Act by respondent No.2 was set aside and the Assessing Officer was directed to make fresh assessment after making necessary and proper enquiry/investigation. 2. A few facts relevant for the decision of the controversy involved as narrated in the petition may be noticed. The petitioner is a public limited company. It is engaged, inter-alia, in the business of manufacture/generation of steel, power, iron, pig iron, sponge iron etc. at various separat .....

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the return of income. All the units in respect of which deduction under sections 80IA and 80IB of the Act was claimed by the petitioner in the assessment year 2005-06 were separate industrial units/undertakings, independently eligible for deduction under the respective sections. The said units were set up in the earlier assessment years and the eligibility of the petitioner to claim deduction under sections 80IA and 80IB of the Act in respect of profits derived from various units was subject ma .....

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ner of Income Tax (Appeals) [CIT(A)] which was partly allowed vide order dated 11.11.2008, Annexure P.4. While adjudicating the appeal filed by the petitioner, the CIT(A) examined the claim of deduction under sections 80IA and 80IB of the Act and therefore, on the issue of deduction claimed under the said sections, the assessment order stood merged with the order of the CIT(A). Against the order passed by the CIT(A) dated 11.11.2008, Annexure P.4, cross appeals were filed by the petitioner and t .....

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ere initiated by the Assessing Officer vide notice dated 23.3.2012, under section 148 of the Act i.e. after expiry of four years from the end of the relevant assessment year. The Assessing Officer rejected the legal objections raised by the petitioner and proceeded to complete reassessment vide order dated 4.3.2013 under section 143(3)/147 of the Act reducing the amount eligible for deduction in respect of MBF units to ₹ 32,36,61,107/-. The aforesaid reassessment proceedings were initiated .....

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.2013, Annexure P.8 under Section 263 of the Act proposing to revise the reassessment order dated 4.3.21013. It was alleged that the reassessment order was erroneous and prejudicial to the interests of the revenue. Against the said notice, the petitioner filed legal objections challenging the assumption of jurisdiction by respondent No.1 under section 263 of the Act. The petitioner requested respondent No.1 to either drop the revisionary proceedings under section 263 of the Act or to dispose of .....

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consideration. It was alleged by respondent No.1 in the said show cause notice that separate books of account were not being maintained in respect of MBF unit and therefore the said unit was not eligible for deduction under section 80IB of the Act. The petitioner was directed to furnish reply within three days. The petitioner filed letter dated 23.3.2015, Annexure P.11 inter alia reiterating in detail the legal objections challenging the assumption of revisionary jurisdiction under section 263 o .....

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itioner has a statutory efficacious/alternative remedy of appeal before the Tribunal under section 253(1) of the Act. On merits also, the impugned order has been supported. 4. After hearing learned counsel for the parties and perusing the record, we find force in the preliminary objection raised by the respondents. In Titaghur Paper Mills Co. Ltd. v. State of Orissa (1983) 2 SCC 433, a three-Judge Bench of the Apex Court considered the question whether a petition under Article 226 of the Constit .....

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appeal before the Prescribed Authority under subsection (1) of Section 23 of the Act. If the petitioners are dissatisfied with the decision in the appeal, they can prefer a further appeal to the Tribunal under sub-section (3) of Section 23 of the Act, and then ask for a case to be stated upon a question of law for the opinion of the High Court under Section 24 of the Act. The Act provides for a complete machinery to challenge an order of assessment, and the impugned orders of assessment can only .....

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ablished founded upon statute. . . . But there is a third class, viz. where a liability not 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 Hous .....

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Central Excise, Chandan Nagar, West Bengal v. Dunlop India Ltd. and others (1985) 1 SCC 260 observed as under: "Article 226 is not meant to short-circuit or circumvent statutory procedures. It is only where statutory remedies are entirely illsuited to meet the demands of extraordinary situations, as for instance where the very vires of the statute is in question or where private or public wrongs are so inextricably mixed up and the prevention of public injury and the vindication of public j .....

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oceedings by one device or the other. The practice certainly needs to be strongly discouraged." 6. Further, the Apex Court in Commissioner of Income Tax and others vs. Chhabil Dass Agarwal, (2013) 357 ITR 357, considered the question of entertaining writ petition where alternative statutory remedy was available. After examining the relevant case law on the point, it was recorded as under:- 14. In the instant case, the only question which arises for our consideration and decision is whether .....

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emedy is available is a rule of self-imposed limitation. It is essentially a rule of policy, convenience and discretion rather than a rule of law. Undoubtedly, it is within the discretion of the High Court to grant relief under Article 226 despite the existence of an alternative remedy. However, the High Court must not interfere if there is an adequate efficacious alternative remedy available to the petitioner and he has approached the High Court without availing the same unless he has made out .....

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n, AIR 1954 SC 207; Sangram Singh vs. Election Tribunal, Kotah, AIR 1955 SC 425; Union of India vs. T.R. Varma, AIR 1957 SC 882; State of U.P. vs. Mohd. Nooh, AIR 1958 SC 86 and K.S. Venkataraman and Co. (P) Ltd. vs. State of Madras, AIR 1966 SC 1089 have held that though Article 226 confers a very wide powers in the matter of issuing writs on the High Court, the remedy of writ absolutely discretionary in character. If the High Court is satisfied that the aggrieved party can have an adequate or .....

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n, (1988) 1 SCC 572; Rajasthan SRTC vs. Krishna Kant, (1995) 5 SCC 75; Kerala SEB vs. Kurien E. Kalathil, (2000) 6 SCC 293; A. Venkatasubbiah Naidu vs. S. Chellappan, (2000) 7 SCC 695; L.L. Sudhakar Reddy vs. State of A.P., (2001) 6 SCC 634; Shri Sant Sadguru Janardan Swami (Moingiri Maharaj) Sahakari Dugdha Utpadak Sanstha vs. State of Maharashtra, (2001) 8 SCC 509; Pratap Singh vs. State of Haryana, (2002) 7 SCC 484 and GKN Driveshafts (India) Ltd. vs. ITO, (2003) 1 SCC 72). 17. In Nivedita Sh .....

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(AIR p. 1423, para 7). 7. … The High Court does not therefore act as a court of appeal against the decision of a court or tribunal, to correct errors of fact, and does not by assuming jurisdiction under Article 226 trench upon an alternative remedy provided by statute for obtaining relief. Where it is open to the aggrieved petitioner to move another tribunal, or even itself in another jurisdiction for obtaining redress in the manner provided by a statute, the High Court normally will not .....

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t statute only must be availed of. This rule was stated with great clarity by Willes, J. in Wolverhampton New Waterworks Co. v. Hawkesford, 141 ER 486 in the following passage: (ER p. 495) … There are three classes of cases in which a liability may be established founded upon a statute. … But there is a third class viz. where a liability not existing at common law is created by a statute which at the same time gives a special and particular remedy for enforcing it. … The rem .....

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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. 14. In Mafatlal Industries Ltd. v. Union of India, (1997) 5 SCC 536 B.P. Jeevan Reddy, J. (speaking for the majority of the larger Bench) observed: (SCC p. 607, para 77) 77. … So far as the jurisdiction of the High Court under Article 226-or for that matter, the juri .....

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lop India Ltd., (1985) 1 SCC 260; Ramendra Kishore Biswas v. State of Tripura, (1999) 1 SCC 472; Shivgonda Anna Patil v. State of Maharashtra, (1999) 3 SCC 5; C.A. Abraham v. ITO, (1961) 2 SCR 765; Titaghur Paper Mills Co. Ltd. v. State of Orissa, (1983) 2 SCC 433; H.B. Gandhi v. Gopi Nath and Sons, 1992 Supp (2) SCC 312; Whirlpool Corpn. v. Registrar of Trade Marks, (1998) 8 SCC 1; Tin Plate Co. of India Ltd. v. State of Bihar, (1998) 8 SCC 272; Sheela Devi v. Jaspal Singh, (1999) 1 SCC 209 and .....

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provides for a person aggrieved by an assessment thereunder, a particular remedy to be sought in a particular forum, in a particular way, it must be sought in that forum and in that manner, and all the other forums and modes of seeking [remedy] are excluded. 19. Thus, while it can be said that this Court has recognized some exceptions to the rule of alternative remedy, i.e., where the statutory authority has not acted in accordance with the provisions of the enactment in question, or in defianc .....

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the action complained of has been taken itself contains a mechanism for redressal of grievance still holds the field. Therefore, when a statutory forum is created by law for redressal of grievances, a writ petition should not be entertained ignoring the statutory dispensation. 20. In the instant case, the Act provides complete machinery for the assessment/re-assessment of tax, imposition of penalty and for obtaining relief in respect of any improper orders passed by the Revenue Authorities, and .....

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