TMI Blog2020 (3) TMI 395X X X X Extracts X X X X X X X X Extracts X X X X ..... earned Single Judge. Hence, the writ appeal is dismissed. - WRIT APPEAL No.991 OF 2018 (T-IT) - - - Dated:- 3-2-2020 - MR. RAVI MALIMATH AND MR. M.I. ARUN JJ. APPELLANT (BY SRI. TUSHAR JARWAL, ADVOCATE FOR SRI. C.K. NANDA KUMAR, ADVOCATE) RESPONDENTS SRI. E.I. SANMATHI, ADVOCATE FOR R2 AND R3) JUDGMENT RAVI MALIMATH J., Aggrieved by the order dated 12.02.2018 passed by the learned Single Judge, in dismissing writ petition No.5914 of 2018, the writ petitioner is in appeal. 2. The case of the petitioner is that it is a Malaysian company incorporated under the laws of Malaysia and has its registered office in Kuala Lumpur, Malaysia. It does not have any office or presence in India. Respondent no.2-Deputy Commissioner of Income Tax for the assessment year 2009-10 raised a demand dated 18.12.2017 for a sum of ₹ 20,84,448/- against the petitioner-company. The reassessment order was sought to be challenged before the learned Single Judge of this Court on the ground that the alleged breach of principles of natural justice by the respondent-assessing authority namely, non-service of the statutory notice under Section 148 of the Income Tax Act ( the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... count Co. Ltd. vs. Income-Tax Officer, Companies District I, Calcutta and another reported in (1961) 41 ITR 191 . He contends that in terms of the judgment of the Hon ble Supreme Court, since the question of jurisdiction has been questioned, the writ court should have entertained this plea. That the plea of the petitioner is that the authorities do not have any jurisdiction to issue a notice under Section 147 of the Act. Therefore, the said judgment covers the issue on hand. We have considered the judgment at length. We asked a question to the appellant as to why the order of the learned Single Judge is erroneous in view of the availability of an alternative and efficacious remedy. His reliance placed on Calcutta Discount Co.Ltd. case reported in (1961) 41 ITR 191 , in our considered view, is misplaced. In spite of repeatedly asking the learned counsel, he is unable to point out that portion of the order wherein the alternative remedy has been discussed by the Hon ble Supreme Court. As we understand, the issue therein was with regard to the jurisdiction in issuing a notice under the erstwhile Section 34 of the Act. The Hon ble Supreme Court went into the merits of the matter ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... aw and in the light of the well-recognised principles relating to the exercise of its jurisdiction, after an opportunity is given to the Income-tax Officer to meet the allegations made in the petition. We may also observe that we are constrained to set aside the order because we have no indication as to the grounds on which the High Court has rejected the petition which, prima facie, makes out a case which may require investigation and trial. It is on this ground that the Hon ble Supreme Court even though there is an alternative and efficacious remedy entertained the writ petition and remitted the matter to the Income Tax Officer. This was a case where the High Court dismissed the writ petition without giving any reasons and the Hon ble Supreme Court observed that they have no indication at all as to the ground on which the High Court dismissed the writ petition. That is not the fact situation herein. Hence, the said judgment is not applicable. 6. Reliance is placed on the Division Bench judgment of this Court in the case of Jeans Knit P. Ltd. vs. Deputy Commissioner of Income-Tax and Others reported in [2014] 367 ITR 773 wherein the appellant therein was relegated to ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d the judgment at length. Petition therein involved the validity of the impugned notifications issued by the State under the Kerala Value Added Tax Act, 2003. However, that is not the case herein. What is being contended on the merits of the matter is with regard to the jurisdiction of the authority. There is no question involved regarding the availability of an alternative and efficacious remedy in the said order. Hence, the said judgment is not applicable. 9. On the other hand, counsel for respondent nos.2 and 3 relies upon the judgment of the Hon ble Supreme Court in GKN Driveshafts (India) Ltd. v. Income Tax Officer and Others reported in (2003)1 SCC 72 wherein the Hon ble Supreme Court held that the proper course of action to question the notice issued under Section 147 of the Act is for the assesee to file a return. Therefore, a writ court should restrain itself from entertaining such matters. Reliance is also placed on the judgment of the Hon ble Supreme Court in Commissioner of Income-Tax and Others vs. Chhabil Dass Agarwal reported in [2013] 357 ITR 357 (SC) wherein the Hon ble Supreme Court held at paragraph 19 as follows: Thus, while it can be said that t ..... X X X X Extracts X X X X X X X X Extracts X X X X
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