TMI Blog2020 (1) TMI 356X X X X Extracts X X X X X X X X Extracts X X X X ..... statutory dispensation. But, such principles, in a given case, may be given a go bye, if the Court is convinced that on the face of it, the impugned order is not sustainable in law. We are of the view that we should look into the matter on merits while overruling the preliminary objection raised on behalf of the Revenue. We are convinced that the impugned order passed by the Assessing Officer is not sustainable in law. We once again fall back on the directions issued by the Appellate Tribunal. The directions are plain and simple. The Tribunal takes the view that Section 44AD of the Act is not applicable. It directed the assessee to attend the assessment proceedings and justify its case on lower rate of profit in accordance with its books of account. The Assessing Officer was directed to verify the same and decide the issue a fresh (the Tribunal says that decide the issue a fresh means the issue with regard to the claim of lower rate of profit). If the appeal would have been dismissed without there being any direction of remitting the matter to the Assessing Officer, then the effect would have been as if the Tribunal has accepted that the case would fall within the Section 4 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r consideration was filed on 1st November 2004 declaring total income at ₹ 11,16,785/( Rupees Eleven Lakh Sixteen Thousand Seven Hundred Eighty Five only) and the same was processed under Section 143(1) of the Act. 2.2 The case of the assessee came to be selected for scrutiny and various details were called for by the Assessing Officer. In such circumstances, the best judgement assessment came to be framed under Section 144 of the Act vide order dated 8th December 2006 assessing the income of the assessee at ₹ 1,25,93,920/( Rupees One Crore Twenty Five Lakh Ninety Three Thousand Nine Hundred Twenty only) in view of the provisions of Section 44AD of the Act. 2.3 The writ applicant challenged the assessment order dated 8th December 2006 by preferring an appeal before the CIT (Appeals). The said appeal came to be dismissed by the CIT(Appeals) vide order dated 31st December 2007. 2.4 The writ applicant, thereafter, thought fit to carry the matter before the Income Tax Appellate Tribunal, but, by the time, the writ applicant could prefer the appeal, there was already delay of 329 days in filing such appeal. The Income Tax Appellate Tribunal decl ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... partly allowed the appeal preferred by the writ applicant herein holding as under: 6 We have carefully perused the contents of the application for condonation of delay along with the affidavit. In our considered opinion, the assessee prevented by reasonable and sufficient cause for not filing the appeal on time. Therefore, in the interest of Justice and fair play, the delay is condoned. 7. Coming to the merits of the case, we find that the assessment order was made ex parte u/s. 144 of the Act which was confirmed by the ld. CIT(A). 8. A perusal of the order of the authorities below shows that because of non attendance by the assessee, the A.O. proceeded by applying rate of 8% following guidelines of Section 44AD of the Act. 9. In our considered opinion and the understanding of the facts in issue, since e return was accompanied with Audit Report u/s 44AB of the Act provisions of Section 44AD are not applicable. 10. Therefore, in the interest of justice, we deem it fit to restore the issue to the files of the A.O. The Assessee is directed to attend the assessment proceedings and justify its claim of lower rate of profit in a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... as discussed in para 10.3 94,317/ On account of disallowance of trade payable as discussed in para 11 1,28,38,395/ 5,37,67,745/ Assessed income 5,48,84,530/ 13 Assessed u/s. 143(3) r.w.s. 254 of the Income Tax Act, 1961. Give credit for prepaid taxes, after the verification. Charge interest u/s. 234A, u/s.234B, 234C 234D of the I.T. Act, 1961 as applicable. Issued show cause notice u/s. 274 r.w. Section 271(1)(c) of the Act. Issue demand notice and challan accordingly. 6 Being dissatisfied with the order passed by the Assessing Officer, the assessee is here before this Court with the present writ application. SUBMISSIONS ON BEHALF OF THE WRIT APPLICANT: 7 Mr. Hemani, the learned senior counsel assisted by Ms. Vaibhavi K. Parikh, the learned counsel appearing for the writ applicant vehemently submitted that the impugned order passed by the Assessing Officer is without jurisdiction. The learned senior counsel would submit that what cannot be don ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... cts also of the matter. 11 In such circumstances referred to above, the learned standing counsel prays that there being no merit in this writ applicant, the same be rejected. 12 Having heard the learned counsel appearing for the parties and having gone through the materials on record, the following two questions fall for our consideration: [1] Whether we should entertain this writ application in view of the fact that there is an alternative remedy available to the writ applicant by preferring an appeal before the CIT (Appeals)? [2] If we take the view that this writ application is maintainable, then whether the impugned order passed by the Assessing Officer is sustainable in law? 13 Having regard to the basic infirmity in the impugned order passed by the Assessing Officer, we are of the view that we should not reject this writ application only the ground that the writ applicant has an alternative efficacious remedy of preferring an appeal before the CIT (Appeals). In this context, we may refer to a decision of the Supreme Court in the case of Commissioner of Income Tax vs. Chhabil Dass Agarwal [2013] 357 ITR 357 (SC). We rely up ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ; 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 Sharma vs. Cellular Operators Assn. of India, (2011) 14 SCC 337, this Court has held that where hierarchy of appeals is provided by the statute, party must exhaust the 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 selfimposed 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, and does not by assuming jurisdiction under Article 226 trench upon an al ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ies. It is, however, equally obvious 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. 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 Punjab National Bank v. O.C. Krishnan, (2001) 6 SCC 569) 18. In Union of India vs. Guwahati Carbon Ltd., (2012) 11 SCC 651, this Court has reiterated the aforesaid principle and observed: 8. Before we discuss the correctness of the impugned order, we intend to remind ourselves the observations made by this C ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nder the Act as ineffectual and non-efficacious while invoking the writ jurisdiction of the High Court nor has the High Court ascribed cogent and satisfactory reasons to have exercised its jurisdiction in the facts of instant case. 14 Thus, the dictum of law, as laid in the aforesaid decision, is that although 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, yet the remedy under the statute, however, must be effective and not a mere formality with no substantial relief. It is true that when a statutory forum is created by law for redressal of grievance, a writ petition should not be entertained ignoring the statutory dispensation. But, such principles, in a given case, may be given a go bye, if the Court is convinced that on the face of it, the impugned order is not sustainable in law. We are of the view that we should look into the matter on merits while overruling the preliminary objection raised on behalf of the Revenue. 15 We are convinced that the impugned order passed by the Assessing Officer is not sustainable ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
