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INVOKING WRIT JURISDICTION FOR INCOME TAX MATTERS

Income Tax - By: - Mr. M. GOVINDARAJAN - Dated:- 2-12-2016 - Assessment under Income Tax Act The assessee, coming under the purview of Income Tax Act, 1961 ( Act for short) is under an obligation to assess the tax himself and pay to the credit of the Central Government and he is liable to file the return of income tax in the prescribed form and within the prescribed time and in the prescribed manner. If there is a default in the payment of income tax or if any money is escaped of assessment the .....

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als) passes order in writing, disposing of the appeal and stating the decision on each ground of appeal with reasons in case of reduce or enhance it. Before enhancing the tax, Commissioner of Income-tax (Appeals) has to provide reasonable opportunity to the tax payer for showing cause against such enhancement. While disposing of an appeal, the Commissioner (Appeals) may consider and decide any matter arising out of the proceedings in which order appealed against was passed, even if such matter w .....

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efore the Appellate Tribunal within 60 days of the date on which order appealed against is communicated to the taxpayer or the Commissioner, as the case may be. The tax payer or the Assessing Officer on receipt of notice that an appeal has been filed before the Appellate Tribunal against order of Commissioner (Appeals) by the other party can, within 30 days of receipt of notice, file a memorandum of cross objections in Form No. 36A. Such memorandum of cross objections can be filed even if no app .....

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ppeal. Appeal to the High Court against Appellate Tribunal s order can be filed by the tax payer or the Chief Commissioner/Commissioner within 120 days of receipt of the order and in the form of memorandum of appeal, precisely stating the substantial question of law involved. Appeal before Supreme Court Section 261 and 262 of the Act provides for the procedure for filing appeal before the Supreme Court of India. Appeal against High Court s order in respect of Appellate Tribunal s order lies with .....

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ate of any authority or person endowed with State Authority. The High Courts have wide powers as to compare to Supreme Court in issuing writs. The Supreme Court can issue writ only in case of violation of any of the fundamental rights contained in Part III of the Constitution, while the High Courts can issue writs only in case of violation of fundamental rights but also in case of violation of any legal rights of the citizens provided that a writ is a proper remedy in such cases, according to we .....

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fact; where the grant of writ would be futile; and where the impugned law has not come into force. In Joshi Technologies International Inc V. Union of India and others - 2015 (5) TMI 521 - SUPREME COURT the Supreme Court held that in purely contractual matters the extraordinary remedy of writ under Article 226 or Article 32 of the Constitution of India cannot be invoked. There is no bar to the maintainability of the writ petition even in contractual matters or where there are disputed questions .....

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f the Constitution and relegate the party to the said mode of settlement, particularly when settlement of disputes is to be resorted through by means of arbitration; if there are very serious disputed questions of fact which are complex nature and require oral evidence for their determination; and money claims per se particularly arising out of contractual obligations are normally not to be entertained except in exceptional circumstances. Alternative remedy The writ jurisdiction cannot be invoke .....

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of the orders passed by the Revisional Authority, the stand taken by the Department that tax should be deducted at service in respect of payment made to M/s Jaldhi Overseas Private Limited, Singapore, on the face of it, it is unsustainable and, therefore, for the said reason, the non availment of the appeal remedy cannot put against the appellant. In Kaira District Co-operative Milk Producers Union Limited V. Deputy Commissioner of Income Tax - 2015 (11) TMI 302 - GUJARAT HIGH COURT the High Cou .....

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The High Court will not invoke the writ jurisdiction if the disputed question of fact is involved as discussed in the above para. In Charanjit Singh V. Central Board of Direct Taxes and others - 2015 (12) TMI 977 - PUNJAB AND HARYANA HIGH COURT the assessee failed to give satisfactory explanation for the sources and the nature of credit of ₹ 120 crores in his bank account. The said amount was added to his total income. The assessee filed a revision petition before the Commissioner. The Co .....

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etitioner under Article 226 could not be entertained. Moreover it was evident that disputed question of fact were involved. It would, thus, not be appropriate in writ jurisdiction to adjudicate them. The High Court held that the writ petition is not maintainable. In PVP Ventures Limited V. Income Tax Officer - 2016 (7) TMI 969 - MADRAS HIGH COURT the company was dissolved prior to issuance of notice. The notice calling for details is relating to assessment year prior to dissolution. The High Cou .....

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d balance sheet for the last three years along with an affidavit reflecting the accounts and annual receipts of income. In Bhupesh Kumar Sikrhen Evam Vikes Sansthan V. Deputy Commissioner of Income Tax (Investigations) - 2015 (5) TMI 3 - PATNA HIGH COURT the assessee failed to furnish the audited accounts and balance sheet for the last three years. The assessee, despite given opportunity, did not come forward to file the same. The High Court held that the facts cannot be considered in the Writ p .....

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itution, filed an application in Form No. 56D seeking exemption under Section 10(23C) (vi) of the Act. The Chief Commissioner of Income Tax issued a show cause notice calling upon the assessee to show cause why the application should not be rejected on the ground that the application was not filed within the period specified in the fourth proviso to Section 10(23C) (vi) for the assessment year 2012-13 and that the assessee society could not be said to be existing solely for educational purposes. .....

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delay. In Aroni Commercials Limited V. Assistant Commissioner of Income Tax and another - 2014 (8) TMI 390 - BOMBAY HIGH COURT the High Court held that the mere issue of notices by the Revenue would not bar the assessee from moving the High Court in its writ jurisdiction. The Limitation Act per se is not applicable to petitions under Article 226 of the Constitution of India. In C.M. Smith and Sons V. Assistant Commissioner of Income Tax - 2014 (5) TMI 9 - GUJARAT HIGH COURT the High Court held t .....

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2015 (9) TMI 392 - KARNATAKA HIGH COURT the High Court held that while invoking the writ jurisdiction of the High Court, the bona fide of the petitioner approaching the Court is to be considered and even if the law may be, to some extent, in favor of the petitioner, yet if the bona fides of the petitioner himself are doubtful or the petitioner has not come with clean hands, meaning thereby, that equity is not in favor with the petitioner, the Court will always refuses to exercise its extra ordi .....

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lues as to the source of monies in the foreign bank. The conduct on the part of the assessee and her uncle, led to the conclusion that it was not a fit case to interfere with the orders of statutory authorities in exercise of writ jurisdiction. Mistakes in the notice In Rastriya Ispat Nigam Limited V. Assistant Commissioner of Income Tax and another - 2015 (5) TMI 587 - ANDHRA PRADESH HIGH COURT the High Court held that the question whether the mistake pointed out in the notice was an obvious an .....

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f the proprietor. The assessee contended that there was no information in the possession of the officer which could have persuaded any reasonable person to form an opinion about the existence of undisclosed assets of the assessee. The warrant of authorization was issued mechanically and arbitrarily. The Department contended that it has enough material against the assessee as it had suppressed vital information pertaining to products and sale. The High Court quashed the search and seizure on the .....

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rt remanded the matter to the High Court for a fresh decision. Assessment on non existing company In Jitendra Chandralal Navlani and another V. Union of India and others - 2016 (9) TMI 60 - BOMBAY HIGH COURT the High Court held that the notice had been issued in respect of a non existing entity as the company, which had been dissolved, had been struck off the rolls of Registrar of Companies as a non existing company. Consequently the assessment has been framed also in respect of the non existing .....

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COURT the High Court held that the findings of the Settlement Commission on the fulfillment of the requirements of a valid offer were merely tentative and it would be open for the Settlement Commission to examine these aspects before passing final order. The writ would not issue to quash the proceedings. In Commissioner of Income Tax V. Income Tax Settlement Commissioner and another - 2015 (5) TMI 826 - BOMBAY HIGH COURT the High Court held that if the conditions regarding the threshold limits f .....

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11) TMI 734 - KERALA HIGH COURT the High Court held that the power of judicial review is not to be exercised to decide the issue on facts or an interpretation of the documents available before the Court. Therefore, the enquiry by the Court can only be with regard to whether or not the Settlement Commission exercised a jurisdiction that it did not have or alternatively, if it did have the jurisdictional whether it erred in the exercise of that jurisdiction. In the latter event, the Court would al .....

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