TMI Blog2021 (11) TMI 571X X X X Extracts X X X X X X X X Extracts X X X X ..... espondent, the same could be treated at the most as an irregularity which would not warrant interference of this Court for setting aside the assessment order, more particularly, when an efficacious and alternative statutory remedy is provided under the Act. Since we are not inclined to entertain the petition on the ground of existence of alternative remedy, as such we need not go into the merits of the petition. Eligible reasons to believe - AO has power to reopen if there is tangible material to believe that there was an escapement of income from assessment and that when such material has a live link with the formation of the belief. In the instant case, as stated by the respondent in the affidavit-in- reply, the petitioner had not deducted the TDS as detailed in Annexure 6 to form 3CD and therefore, the same was not taken into consideration by the Assessing Officer while passing the order under Section 143(3) of the Act. When the said material was not considered at the time of original assessment on 30.12.2016, the consideration of the same by the respondent could not be said to be a change of opinion or review of earlier order. - Decided against assessee. - R/Special C ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tion on the ground of existence of an alternative remedy, has filed a reply denying the allegations and averments made in the petition, to which the petitioner has filed an affidavit-inrejoinder. 4. Learned Advocate Mr. Darshan R. Patel appearing for the petitioner placing reliance on the decision of the Supreme Court in the case of Commissioner of Income-Tax v. Kelvinator India Limited and Others reported in [2010] 320 ITR 561 (SC) vehemently submitted that the scrutiny assessment having already been framed by the respondent under Section 143(3) vide the order dated 30.12.2016, the reopening of the assessment vide the impugned notice, on the basis of change of opinion of the assessing officer was not permissible. He further submitted that the petitioner-assessee had disclosed truly and fully all the material necessary for the Assessment Year under consideration, however the reopening was sought to be done by the respondent without any new tangible material on record. He also submitted that the show cause notice was illegal in absence of a previous sanction as contemplated under Section 151 of the said Act. As regards the framing of the impugned order of reassessment, Mr. Patel ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... oathe in entertaining the petition under Article 226 of the Constitution of India. It is needless to say that the Income Tax Act provides for a complete machinery to challenge an order of assessment, and therefore the impugned order of reassessment should have been challenged by the petitioner only by way of filing an appeal as prescribed under the Act. The Supreme Court in a very recent decision in the case of Assistant Commissioner (CT) LTU, Kakinada and Others v. Glaxo Smith Kline Consumer Health Care Limited reported in AIR 2020 SC 2819, while considering the question as to whether the High Court under Article 226 of the Constitution of India ought to entertain a challenge to an assessment order on the ground that the statutory remedy of appeal against that order had stood foreclosed by law of limitation, observed as under :- 11. In the backdrop of these facts, the central question is: whether the High Court ought to have entertained the writ petition filed by the respondent? As regards the power of the High Court to issue directions, orders or writs in exercise of its jurisdiction under Article 226 of the Constitution of India, the same is no more res integra. Even though ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tions which demand an elaborate examination of evidence to establish the right to enforce which the writ is claimed. 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 unde r Article 226 trench upon an alternative remedy provided by statute for obtaining relief. Where it is open to the aggrieved petitioner to move another tribunal, or even itself in another jurisdiction for obtaining redress in the manner provided by a statute, the High Court normally will not permit by entertaining a petition unde r Article 226 o f the Constitution the machinery created under the statute to be bypassed, and will leave the party applying to it to seek resort to the machinery so set up. (emphasis supplied) We may usefully refer to the exposition of this Court in Titaghur Paper Mills Co. Ltd. Anr. Vs. State of Orissa Ors., wherein it is observed that where a right or liability is created by a statute, which gives a special remedy for enforcing it, the remedy provided by that statute must only be availed of. In paragraph 11, the Court observed thus: 11. Under the scheme ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rt, however, added a word of caution and expounded that the constitutional Court would certainly take note of the legislative intent manifested in the provisions of the Act and would exercise its jurisdiction consistent with the provisions of the enactment. To put it differently, the fact that the High Court has wide jurisdiction under Article 226 of the Constitution, does not mean that it can disregard the substantive provisions of a statute and pass orders which can be settled only through a mechanism prescribed by the statute. 7. The Supreme Court in the case of Commissioner of Income-Tax and Others v. Chhabil Dass Agarwal (supra) has also made very pertinent observations with regard to exercise of jurisdiction under Article 226 when an alternative efficacious remedy is available to the petitioner. The said observations read as under :- 15. Before discussing the fact proposition, we would notice the principle of law as laid down by this Court. It is settled law that non-entertainment of petitions under writ jurisdiction by the High Court when an efficacious alternative remedy is available is a rule of self-imposed limitation. It is essentially a rule of policy, convenien ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... instant case, the Assessing Officer after following the principles of natural justice and following the due procedure had passed a Speaking Order on 04.10.2019 in response to the objections raised by the petitioner against reopening of the assessment for the Assessment Year 2014-2015. The Assessing Officer thereafter passed the impugned Assessment Order on 14.10.2019 after affording the opportunity of hearing by calling upon the petitioner to show cause as to why the deductions under Section 43B and under Section 40(a)(ia) as mentioned in the order dated 04.10.2019, should not be made. Under the circumstances, and in view of the legal position stated hereinabove, a complete machinery having been provided under the Act for reassessment and for obtaining relief in respect of impugned order passed by the respondent, the petitioner Assessee could not be permitted to abandon the said remedy and to invoke the jurisdiction of this Court under Article 226 of the Constitution of India. Though it is sought to be pointed out by Mr. Patel that the adjournment application submitted by him was not considered by the respondent before passing the impugned order of reassessment, the same cannot be ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nion is removed, as contended on behalf of the Department, then, in the garb of re-opening the assessment, review would take place. One must treat the concept of change of opinion as an in-built test to check abuse of power by the Assessing Officer. Hence, after 1st April, 1989, Assessing Officer has power to re-open, provided there is tangible material to come to the conclusion that there is escapement of income from assessment. Reasons must have a live link with the formation of the belief. 10. In view of the above, it is quite clear that the Assessing Officer has power to reopen if there is tangible material to believe that there was an escapement of income from assessment and that when such material has a live link with the formation of the belief. In the instant case, as stated by the respondent in the affidavit-in- reply, the petitioner had not deducted the TDS as detailed in Annexure 6 to form 3CD and therefore, the same was not taken into consideration by the Assessing Officer while passing the order under Section 143(3) of the Act. When the said material was not considered at the time of original assessment on 30.12.2016, the consideration of the same by the respo ..... X X X X Extracts X X X X X X X X Extracts X X X X
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