TMI Blog2021 (12) TMI 994X X X X Extracts X X X X X X X X Extracts X X X X ..... ample and multiple opportunities being given to the writ petitioner, all of which is captured in the aforementioned two paragraphs - On a demurrer, even if it is to be construed that the cancellation is vide impugned order cancellation of registration under Section 12AA of said Act is also revisable under Section 264 of said Act. Suffice to say that there is an effective and efficacious alternate remedy even against cancellation. To be noted, as mentioned in the opening part of this point this is on a demurrer - The submission that the writ petitioner-assessee being given the benefit of registration under Section 12AA of said Act for thirty years continuously falls flat on its face in the light of aforementioned assessment order dated 30.04.2021 made for the assessment year 2018-19 Non speaking order - The impugned order, in the considered view of this Court cannot be said to be a non-speaking order. Two critical paragraphs in the impugned order which has captured the crux and gravamen of the matter had been extracted and reproduced supra. Those two paragraphs by itself and of course the rest of the order make it clear that it is not a non-speaking order. It may at best be a t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... For the Respondents : Mr.N.Dilip Kumar, Senior Standing Counsel for Income Tax ORDER ******************** In the captioned main writ petition an 'assessment order dated 23.09.2021 bearing reference DIN No.ITBA/AST/S/143(3)/2021-22/1035839283(1)' (hereinafter 'impugned order' for the sake of convenience and clarity) being an assessment order made under Section 143(3) read with Section 144B of 'the Income Tax Act, 1961' [hereinafter 'said Act' for the sake of convenience and brevity] has been assailed. 2. Mr.T.Ramesh, learned counsel appearing on behalf of the counsel on record for writ petitioner submitted that the impugned order made by the second respondent is liable to be quashed, notwithstanding very many averments made in the writ affidavit and very many grounds raised in the writ affidavit, learned counsel in his campaign against the impugned order made three pointed submissions and they are as follows: (a) The registration of the assessee (which according to him) is a registered 'Public Charitable Trust' under Section 12AA of said Act has been cancelled vide the impugned order without giving an opportunity to the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ions 11, 12 benefits qua said Act and taking the total income of the assessee trust i.e., taking the gross income; that assailing the impugned order captioned main writ petition has been filed. 4. This Court having set out the factual matrix in a nutshell, before proceeding further, deems it appropriate to say that the factual matrix narrated supra is based on the writ affidavit averments and the submissions made before this Court. This Court notices that the registration (as set out supra) is not under Section 12A but it is under Section 12AA of said Act. 5. Mr.N.Dilip Kumar, learned Senior Standing Counsel for Income Tax accepted notice on behalf of both the respondents. Owing to the narrow compass on which captioned writ petition turns, with the consent of learned counsel on both sides, captioned main writ petition was taken up and heard out. 6. In response to the points raised by learned counsel for writ petitioner, learned Revenue counsel made submissions a summation of which is as follows: (a) Cancellation of registration under Section 12AA of said Act is not vide the impugned order but the impugned order merely records the fact and more particularly, the impugned ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... But till date no reply has been received from the assessee. Considering the above and going through the reason for selection of the case for scrutiny i.e the Registration of the Trust under Section 12AA of the Income-Tax Act,1961 has been cancelled. Therefore, the authenticity of assessee being a bnafide registered trust not fully confirmed. Hence, without evidence of registered documents, the assessee's claim of being trust is not accepted and taxed as per Income Tax Act, 1961 and the total income of the assessee trust is assessed taking the gross income received by the trust of ₹ 5,75,93,708/- during the Financial Year 2018-19... ' A careful perusal of the aforementioned two paragraphs leaves this Court with the considered view that the cancellation of registration under Section 12AA of said Act is not vide the impugned order but it only records the cancellation; (b) There is nothing to demonstrate why the writ petitioner did not upload the registration certificate under Section 12AA of said Act in spite of adequate ample and multiple opportunities being given to the writ petitioner, all of which is captured in the aforementioned two paragraphs; (c) On ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rse the rest of the order make it clear that it is not a non-speaking order. It may at best be a terse order. An order can be tersely eloquent, it cannot be construed to be a non-speaking order unless it is laconic, not when it is epigrammatic or merely because it is terse. Therefore, this Court is of the considered view that the argument that the impugned order is a non-speaking order becomes a non-starter i.e., an argument which does not take off; (f)This takes this Court to the alternate remedy aspect. Alternate remedy no doubt is a self-imposed restraint. It is not an absolute rule. Alternate remedy rule is a rule of discretion. Notwithstanding alternate remedy rule being a rule of discretion, Hon'ble Supreme Court which in a long line of case laws i.e., in a catena of case laws starting from Dunlop India case [Assistant Collector of Central Excise, Chandan Nagar, West Bengal Vs. Dunlop India Ltd., and others reported in (1985) 1 SCC 260] ; Satyawati Tandon [United Bank of India Vs. Satyawati Tondon and others reported in (2010) 8 SCC 110] and K.C.Mathew [Authorized Officer, State Bank of Travancore and another Vs. Mathew K.C. reported in (2018) ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... involving challenge to the action taken for recovery of the public dues, etc., the High Court must keep in mind that the legislations enacted by Parliament and State Legislatures for recovery of such dues are a code unto themselves inasmuch as they not only contain comprehensive procedure for recovery of the dues but also envisage constitution of quasi-judicial bodies for redressal of the grievance of any aggrieved person. Therefore, in all such cases, the High Court must insist that before availing remedy under Article 226 of the Constitution, a person must exhaust the remedies available under the relevant statute. 55.It is a matter of serious concern that despite repeated pronouncement of this Court, the High Courts continue to ignore the availability of statutory remedies under the DRT Act and the SARFAESI Act and exercise jurisdiction under Article 226 for passing orders which have serious adverse impact on the right of banks and other financial institutions to recover their dues. We hope and trust that in future the High Courts will exercise their discretion in such matters with greater caution, care and circumspection.' (underlining made by this Court to supply ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the case of the respondent.' In addition to the above the oft quoted and celebrated Whirlpool principle [ Whirlpool Corporation Vs. Registrar of Trade Marks, Mumbai and others reported in (1998) 8 SCC 1 ] case law also fortifies the view that is being taken by this Court. The Whirlpool Corporation case is such an oft quoted case law that it has come to stay in litigation parlance as 'Whirlpool exceptions'. In the case on hand, the only arguments that comes closest to an exception is the writ petitioner allegedly not being given an opportunity before cancellation of Section 12AA registration. As already alluded to supra, this Court is of the view that the impugned order may not be the order by which the Section 12AA registration has been cancelled. Though not specifically pointed out, I am of the view that this alleged NJP violation if at all and if that be so would be predicated and posited on the proviso to Sub-section (3) of Section 12AA of said Act. This did not arise as the impugned order merely records a cancellation. This is buttressed and bolstered by the writ petitioner not uploading the registration certificate more so when it is the positive a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the petitioner and treated the total income of the petitioner as gross income. The Respondent also initiated action for imposing penalty under Section 274 read with Section 270 A of IT Act for underreporting of income. In the said Assessment Order there is no finding or mention with regard to the cancellation or otherwise of the Registration Certificate earlier issued to the petitioner under the IT Act. Against the said order, the petitioner has filed an Appeal before Commissioner (Appeals) and the same is pending. ' 12. A perusal of above averment makes it clear that it is the stated position of the writ petitioner i.e., the stated case of the writ petitioner that the assessment order qua 2018-19 has been assailed by the writ petitioner by way of a statutory appeal. The arguments that vide assessment order 2018-19 there is cancellation of 12AA registration certificate, does not hold water and does not carry the writ petitioner any further for two reasons. One reason is as already alluded to supra, the impugned order is not the order by which the cancellation has been made and on a demurrer even if that be so, the same is revisable under Section 264 of said Act and more imp ..... X X X X Extracts X X X X X X X X Extracts X X X X
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