TMI Blog2016 (10) TMI 549X X X X Extracts X X X X X X X X Extracts X X X X ..... (PER : HONOURABLE MR.JUSTICE AKIL KURESHI) 1. These petitions arise in common background. Facts being similar, we may refer from Special Civil Application No.15980/2010. The petitioner is an individual. He has challenged a notice dated 28.8.2009 issued by the respondent Assessing Officer under section 153C of the Incometax Act, 1961( the Act for short). 2. Facts are as under. A search operation under section 132 of the Act was conducted against a group of entities (for convenience referred to as Avirat Adi group ) on 23.5.2008. According to the Revenue, during the course of such search, documents and incriminating materials belonging to the petitioner surfaced. The Assessing Officer of the searched person namely, one Kamlesh Dhanopia recorded his satisfaction on 28.8.2009 that such documents belonged to the petitioner assessee. On the basis of such satisfaction note recorded by the Assessing Officer of the searched person, the Assessing Officer of the petitioner issued the impugned notice calling upon the petitioner to furnish the return of the income for the assessment year 2003-2004. It is this notice, the petitioner has challenged on various grounds. Main ground o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 2013) 357 ITR 713(SC) and in case of Commissioner of Incometax and others v. Chhabil Dass Agarwal reported in (2013) 357 ITR 357(SC) . 5. Section 153C of the Act, as it stood at the relevant time, provided that notwithstanding anything contained in sections 139, 147, 148, 149, 151 and 1534 of the Act, where the Assessing Officer is satisfied that any money, bullion, jewellery or other valuable article or thing or books of account or documents seized or requisitioned belongs or belong to a person other than the person referred to in section 153A, then the books of account or documents or assets, shall be handed over to the Assessing Officer having jurisdiction over such other person and that the Assessing Officer shall proceed against each such other person and issue notice and assess or reassess income of such other person in accordance with the provisions of section 153A of the Act. Under this provision, therefore, the first requirement would be of the Assessing Officer of the searched person to record a satisfaction in terms of section 153C of the Act that any money, bullion, jewellery or other valuable article or thing or books of account or documents seized or requisitione ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he documents seized indicate escapement of income, has issued Show Cause Notices under Section 153C to the assessee for reassessment of his income during the assessment years 2001-2002 to 20062007. Thereafter, upon request of the assessee, the Assessing Authority has furnished him with the copies of documents seized under Section 132A. The assessee being dissatisfied with the said documents instead of filing his explanation/reply to the Show Cause Notices, has filed a Writ Petition before the High Court impugning the said notices. 14. In our considered view, at the said stage 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 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 fi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... thereafter direct the assessee to file the return for the assessment years in question. We make it clear that while framing the assessment order, the Assessing Authority will not be influenced by any observations made by the High Court while disposing of the Writ Petition. If, for any reason, the assessment order goes against the assessee, he/it shall avail and exhaust the remedies available to him/it under the Act, 1961. 8. In case of Chhabil Dass Agarwal (supra), the Supreme Court reiterated that when alternative remedy is available, the High Court would not ordinarily entertain a writ petition under Article 226 of the Constitution. The Court observed as under : 20. In the instant case, the Act provides complete machinery for the assessment/reassessment of tax, imposition of penalty and for obtaining relief 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 ef ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... xureJ1 to this petition which is a handwritten loose document containing various entries with dates and figures, total of which comes to 1105. Reference to B. Nanji is found against several of these entries. With the aid of other documents, materials and recorded statements, the Revenue would correlate this handwritten document with the ledger account of the petitioner maintained in case of B. Nanji Enterprise. In short, the Revenue's contention is that there was sufficient material to prima facie show that in such handwritten noting in the seized document, reference to 1105 was a cash payment by the petitioner to B. Nanji. In addition to appreciating these two documents, we have also taken note of affidavit in reply filed by the respondent in which it is stated interalia as under : Page No89 of AnnexureL is the copy of the ledger account of M/s B. Nanji Enterprises Ltd. in the books of accounts of Sunderdeep Builders, proprietory concern of the petitioner. It is a computer printout taken from the books of accounts of the petitioner maintained on computer and hence belongs to the petitioner. Hence as per the provisions of section 153C of the Act as the document belonging to ..... X X X X Extracts X X X X X X X X Extracts X X X X
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