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2016 (5) TMI 797 - PUNJAB AND HARYANA HIGH COURT

2016 (5) TMI 797 - PUNJAB AND HARYANA HIGH COURT - TMI - Reopening of assessment - maintainability of appeal - Held that:- Admittedly, the original assessment order was passed on 27.12.2010 under section 143(3) of the Act. The petitioner filed appeal before the CIT(A). Vide order dated 11.7.2011, the CIT(A) partly allowed the appeal. Against the said order, the petitioner as well as the department filed appeals before the Tribunal which are pending. During the pendency of the appeal, order under .....

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on 143/147 of the Act. After hearing learned counsel for the petitioner and perusing the sequence of facts as noticed above, we find that the petitioner has an alternative remedy of appeal against the final reassessment order dated 31.3.2016 passed by respondent No.1 under sections 143/147 of the Act

In view of above, we do not find any ground to entertain this petition under Articles 226/227 of the Constitution of India. Consequently, the writ petition is dismissed - CWP No.6983 of 2 .....

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ity of reassessment proceedings and final order dated 31.3.2016 passed under section 143(3)/147 of the Act reassessing the income of the petitioner. 2. A few facts relevant for the decision of the controversy involved as narrated in the petition may be noticed. For the relevant assessment year 2008-09, the petitioner filed return of income declaring income of Rs. 766,72,79,900/- under the normal provisions of the Act and book profit under section 115JB of the Act amounting to Rs. 14,98,73,68,662 .....

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the petitioner. The petitioner challenged the aforesaid additions/disallowances before the Commissioner of Income Tax (Appeals) [CIT(A)]. Vide order dated 11.7.2011, Annexure P.3 the CIT(A) partly allowed the appeal. Against the said order, cross appeals by the petitioner and the department were filed which are pending before the Tribunal. In the meantime, an order setting aside the original assessment completed under section 143(3) of the Act was passed by the Commissioner of Income Tax (CIT) w .....

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y allowed by the Tribunal. Thereafter, reassessment proceedings were initiated under section 147 of the Act vide impugned notice dated 24.3.2015, Annexure P.1 issued under section 148 of the Act. The petitioner filed detailed legal objections to the initiation of reassessment proceedings on various grounds vide letter dated 25.8.2015, Annexure P.4. The petitioner vide letter dated 29.3.2016, Annexure P.5 objected to the passing of the order dated 21.3.2016 disposing of the legal objections raise .....

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ceeded to complete reassessment vide final order dated 31.3.2016 under section 143/147 of the Act i.e. within three days of receipt of order disposing of the legal objections without providing adequate opportunity to make further submissions. Hence the instant writ petition. 3. We have heard learned Senior counsel for the petitioner. 4. Admittedly, the original assessment order was passed on 27.12.2010 under section 143(3) of the Act. The petitioner filed appeal before the CIT(A). Vide order dat .....

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e Act vide notice issued under section 148 of the Act. The objections filed by the petitioner were dismissed vide order dated 21.3.2016 by respondent No.1. Final reassessment order was passed on 31.3.2016 under Section 143/147 of the Act. After hearing learned counsel for the petitioner and perusing the sequence of facts as noticed above, we find that the petitioner has an alternative remedy of appeal against the final reassessment order dated 31.3.2016 passed by respondent No.1 under sections 1 .....

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nding law enacted by the State legislature and answered the same in the negative by making the following observations: "Under the scheme of the Act, there is a hierarchy of authorities before which the petitioners can get adequate redress against the wrongful acts complained of. The petitioners have the right to prefer an appeal before the Prescribed Authority under sub-section (1) of Section 23 of the Act. If the petitioners are dissatisfied with the decision in the appeal, they can prefer .....

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created by a statute which gives a special remedy for enforcing it, the remedy provided by that statute only must be availed of. This rule was stated with great clarity by Willes, J. in Wolverhampton New Waterworks Co. v. Hawkesford in the following passage: "There are three classes of cases in which a liability may be established 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 .....

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Ltd. and Secretary of State v. Mask & Co. 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." 6. Following the above judgment, the Supreme Court in Assistant Collector of 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 circ .....

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dy provided by statute. Surely matters involving the revenue where statutory remedies are available are not such matters. We can also take judicial notice of the fact that the vast majority of the petitions under Article 226 of the Constitution are filed solely for the purpose of obtaining interim orders and thereafter prolong the proceedings by one device or the other. The practice certainly needs to be strongly discouraged." 7. Further, the Apex Court in Commissioner of Income Tax and oth .....

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le 226 when an equally efficacious alternate remedy was available to the assessee under the Act. 15. Before discussing the fact proposition, we would notice the principle of law as laid down by this Court. It is settled law that non-entertainment of petitions under writ jurisdiction by the High Court when an efficacious alternative remedy 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 .....

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Mohammad Nooh, AIR 1958 SC 86; Titaghur Paper Mills Co. Ltd. vs. State of Orissa, (1983) 2 SCC 433; Harbanslal Sahnia vs. Indian Oil Corpn. Ltd., (2003) 2 SCC 107; State of H.P. vs. Gujarat Ambuja Cement Ltd., (2005) 6 SCC 499). 16. The Constitution Benches of this Court in K.S. Rashid and Sons vs. Income Tax Investigation Commission, 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 19 .....

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n that there has been a breach of principles of natural justice or procedure required for decision has not been adopted. (See: N.T. Veluswami Thevar vs. G. Raja Nainar, AIR 1959 SC 422; Municipal Council, Khurai vs. Kamal Kumar, (1965) 2 SCR 653; Siliguri Municipality vs. Amalendu Das, (1984) 2 SCC 436; S.T. Muthusami vs. K. Natarajan, (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 .....

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statutory remedies before resorting to writ jurisdiction for relief and observed as follows: 12. In Thansingh Nathmal v. Supdt. of Taxes, AIR 1964 SC 1419 this Court adverted to the rule of self-imposed restraint that the writ petition will not be entertained if an effective remedy is available to the aggrieved person and observed: (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, .....

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it to seek resort to the machinery so set up. 13. In Titaghur Paper Mills Co. Ltd. v. State of Orissa, (1983) 2 SCC 433 this Court observed: (SCC pp. 440-41, para 11) 11. … It is now well recognised that where a right or liability is created by a statute which gives a special remedy for enforcing it, the remedy provided by that 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 followi .....

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e statute must be adopted and adhered to. The rule laid down in this passage was approved by the House of Lords in Neville v. London Express Newspapers Ltd., 1919 AC 368 and has been reaffirmed by the Privy Council in Attorney General of Trinidad and Tobago v. Gordon Grant and Co. Ltd., 1935 AC 532 (PC) and Secy. of State v. Mask and 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 the .....

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ious that while exercising the power under Article 226/Article 32, the Court would certainly take note of the legislative intent manifested in the provisions of the Act and would exercise their jurisdiction consistent with the provisions of the enactment. (See: G. Veerappa Pillai v. Raman & Raman Ltd., AIR 1952 SC 192; CCE v. Dunlop 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. A .....

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principle and observed: 8. Before we discuss the correctness of the impugned order, we intend to remind ourselves the observations made by this Court in Munshi Ram v. Municipal Committee, Chheharta, (1979) 3 SCC 83. In the said decision, this Court was pleased to observe that: (SCC p. 88, para 23). 23. … when a revenue statute 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 .....

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on of the principles of natural justice, the proposition laid down in Thansingh Nathmal case, Titagarh Paper Mills case and other similar judgments that the High Court will not entertain a petition under Article 226 of the Constitution if an effective alternative remedy is available to the aggrieved person or the statute under which 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 .....

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uate 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. vs. 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. In the instant case, neither has the assessee-writ petitioner described the available altern .....

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ed counsel for the petitioner in GKN Driveshafts (India) Limited vs. Income Tax Officer, (2003) 259 ITR 19 (SC), Allana Cold Storage Limited vs. Income Tax Officer, (2006) 287 ITR 1 (Bom.), Asian Paints Limited vs. Deputy Commissioner of Income Tax, (2008) 296 ITR 90 (Bom.), Aroni Commercials Limited vs. Deputy Commissioner of Income Tax 2(1), (2014) 362 ITR 403 (Bombay), Garden Finance Limited vs. Assistant Commissioner of Income Tax, (2004) 268 ITR 48 (Gujarat), Torrent Power SEC Limited vs. A .....

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