TMI Blog2021 (7) TMI 111X X X X Extracts X X X X X X X X Extracts X X X X ..... oroughly fallacious and not tenable in view of the scheme of the Act. The contention with regard to the documents not provided is also fallacious and not borne out from the record. The evidence upon which the department seeks to rely upon, is already within the knowledge of the writ applicant, as enumerated in the affidavit-in-reply referred to above. In any view of the matter, the assessment in the case of the writ applicant has been transferred from the Exemption to Central Charge. Thus, the contention of adequate opportunity not being given is also factually incorrect. There is one another good reason why we should entertain this writ application. If the impugned show cause notice, ultimately, culminates in an order of assessment, then such order would be an appealable order. A show cause notice can be questioned before a Writ Court provided the writ applicant is able to establish that the show cause notice has been issued without any jurisdictional fact in existence. In other words, a jurisdictional fact is a fact which must exist before a Court, Tribunal or an authority assumes jurisdiction over a particular matter. A jurisdictional fact is one on existence or nonexis ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... (D) Grant any further or other relief as this Hon'ble Court deems just and proper in the interest of justice, and 5 A Coordinate Bench of this Court passed the following order dated 27th December 2018: 1. Learned advocate for the petitioner has tendered draft amendment. The amendment is allowed in terms of the draft. The same shall be carried out forthwith. 2. Mr. Mihir Joshi, Senior Advocate, learned counsel with Ms. Disha Nanavati for the petitioner, invited the attention of the Court to the show cause notice dated 18.12.2018 issued by the respondent to point out that by the show cause notice dated 18.12.2018, the hearing has been fixed on 20.12.2018 whereas the petitioner has been called upon to file its reply within seven days from the date of receipt of the letter. It was pointed out that thereafter another show cause notice dated 21.12.2018 came to be issued referring to an enquiry report of the DDIT (Inv.)1, Vadodara and fixing the date of hearing on 24.12.2018. It was submitted that the assessment is getting time barred on 31.12.2018 and that the show cause notice appears to be a mere empty formality inasmuch as sufficient time has not been granted ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ity of these findings, in the petitioner's case in AY 2016-17 (F.Y. 2015-16), a notice u/s 142(1) of the Act was issued on 03./12.2018 asking the petitioner trust to furnish copy of Return of Income, Acknowledgment, Personal Balance sheet, Profit Loss A/c of each trustees for AY 2016-17 along with the other relevant details related to trust. In response to the same, the petitioner trust submitted its reply on 06.12.2018. Thereafter, upon perusing the documents thoroughly as well as duly considering the instructions issued by the Board and the higher authorities in the matter of scrutiny assesssment, impugned show cause notice dated 18.12.2018 came to be issued requesting the petitioner to reply to the show-cause notice within 07(seven) days from the receipt of the notice. However, the petitioner sought adjournment till 26.12.2018 under letter dated 20.12.2018 and the same was granted. The deponent assessing officer did not proceed to conclude the assessment proceedings. However, the petitioner trust submitted its reply under its letter dated 24.12.2018 on 25.12.2018 through ITBA portal. Meanwhile, the deponent assessing officer also received information fro ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he writ applicant is that in the notice issued under Section 143(2) of the Act dated 28th July 2017, the issues raised in the impugned notices dated 18th December 2018 and 21st December 2018 respectively have not been referred to or stated. We do not find any merit in this contention raised on behalf of the writ applicant. 11 As per the scheme of the Act, once the return of income is filed under Section 139 of the Act, the department would either accept the said return under Section 143(1) of the Act or frame an assessment under Section 143(3) of the Act after complying with the requirement of sub-Section (2) of Section 143 of the Act. Once a notice under Section 143(2) has been issued, the assessment is at large and in the event any adverse view with regard to the accounts of the assessee is to be taken by the Revenue, the assessee is required to be put to notice, which in the instant case has been complied. When the assessment is at large by issuing the first notice under Section 143(2), within the time prescribed and in the course of the ongoing assessment proceedings, if further information is received, the same has to form a part of the assessment proceedings. It is not the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... jurisdiction in the matter on existence of 'jurisdictional fact', it can decide the 'fact in issue' or 'adjudicatory fact'. A wrong decision on 'fact in issue' or on 'adjudicatory fact' would not make the decision of the authority without jurisdiction or vulnerable provided essential or fundamental fact as to existence of jurisdiction is present. 15 Keeping the aforesaid in mind, we may now refer to and rely upon a decision of the Supreme Court in the case of Commissioner of Income Tax and others vs. Chhabil Das Agarwal [Civil Appeal No.6704 of 2013 decided on 8th August 2013], wherein the following has been observed: 20. In the instant case, the Act provides complete machinery for the assessment/re-assessment 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 effec ..... X X X X Extracts X X X X X X X X Extracts X X X X
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