TMI Blog2023 (4) TMI 199X X X X Extracts X X X X X X X X Extracts X X X X ..... ew the earlier order of assessment passed by the A.O. Alternate remedy available to the Petitioner under the Act - The exceptions to the rule of alternate remedy where a writ Court may exercise its jurisdiction under Article 226 of the Constitution of India, are cases where statutory authority has not acted in accordance with the provisions of an enactment in question, or has acted in defence of the fundamental principles of judicial procedure, or has resorted to invoke the provisions which are repealed, or when an order has been passed in violation of the principles of natural justice. Reference in this regard can be made to CIT others V/s. Chhabil Dass Agarwal [ 2013 (8) TMI 458 - SUPREME COURT ] In the present case, we do not wish to relegate the Petitioner to the alternate remedy as provided under the Income Tax Act for the simple reason that not only had the A.O. failed to satisfy the jurisdictional conditions for invoking its power under Sections 147/ 148 of the Act, but had also failed to comply with the directions of GKN Driveshafts (India) Ltd. [ 2002 (11) TMI 7 - SUPREME COURT ] - the petition is allowed. The notice for reopening are hereby set aside. - WRIT P ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tice, the A.O. in paragraph 2 recorded as under: ..Issues as per reasons recorded for reopening null 4. The Petitioner claims that no response was filed to the notice dated 30th June, 2021. Thereafter, a further notice under Section 142(1) of the Act was issued on 02nd December, 2021 asking the Petitioner to furnish further information. The information sought was also in regard to the alleged receipt of Rs.85 lakhs from M/s. Evergreen Enterprises during the financial year 2014-15. The Petitioner claims that a response was filed to the said notice wherein the Petitioner denied having received any loan or advance from M/s. Evergreen Enterprises and sought from Respondent No. 3, information regarding the aforementioned loan. It is stated that Respondent No. 3 without furnishing any material or information regarding the aforesaid loan proceeded to pass the order under Section 147 r/w Section 144B of the Act. 5. It was urged by Ms. Aarti Sathe, learned Counsel for the Petitioner that the entire process of reopening the assessment for the aforementioned assessment year was illegal and unsustainable for the reason that Respondent No. 3 had followed in breach the procedure ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sertions have been made regarding the passing of the orders and notices impugned following the principles of natural justice as also the statutory provisions in force. Mr. Kumar, learned Counsel for the revenue also urged that the order of assessment having been already passed and the penalty proceedings having been initiated, it would be appropriate for the Petitioner to avail the alternate remedy as provided under the Income Tax Act. Reliance in this regard was placed upon Commissioner of Income Tax others V/s. Chhabil Dass Agarwal (2014) 1 SCC 603. 8. We have heard learned Counsel for the parties. 9. The power vested in an A.O. to reopen an assessment in terms of the provisions of Section 147 of the Act as existed before 01st April, 2021, was reason to believe that income chargeable to tax had escaped assessment for any assessment year. In Income-tax Officer V/s. Lakhmani Mewal Das [1976] 103 ITR 437 (SC) the Apex Court held that the powers of the ITO to reopen the assessment, though wide, were not plenary. It was held that the words of the statute were reason to believe and not reason to suspect and that there ought to be a live link or close nexus betwee ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... afts (India) Ltd. 12. In Jindal Photo Films Ltd. Vs. Deputy Commissioner of Income Tax [1998] 234 ITR 170, the Court, in the background of section 147 of the Act, observed : .all that the Income-tax Officer has said is that he was not right in allowing deduction under Section 80I because he had allowed the deductions wrongly and, therefore, he was of the opinion that the income had escaped assessment. Though he has used the phrase reason to believe in his order, admittedly, between the date of the orders of assessment sought to be reopened and the date of forming of opinion by the Income-tax Officer nothing new has happened. There is no change of law. No new material has come on record. No information has been received. It is merely a fresh application of mind by the same Assessing Officer to the same set of facts. While passing the original orders of assessment the order dated February 28, 1994, passed by the Commissioner of Income-tax (Appeals) was before the Assessing Officer. That order stands till today. What the Assessing Officer has said about the order of the Commissioner of Income-tax (Appeals) while recording reasons under Section 147 he could ha ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ass Agarwal . While it is true that High Court would not entertain a petition under Article 226 of the Constitution of India if an effective alternate remedy is available to an aggrieved person yet the said principle of alternate remedy has been held to be a matter of self imposed convenience and not as a matter of rule. The exceptions to the rule of alternate remedy where a writ Court may exercise its jurisdiction under Article 226 of the Constitution of India, are cases where statutory authority has not acted in accordance with the provisions of an enactment in question, or has acted in defance of the fundamental principles of judicial procedure, or has resorted to invoke the provisions which are repealed, or when an order has been passed in violation of the principles of natural justice. Reference in this regard can be made to CIT others V/s. Chhabil Dass Agarwal. 15. In the present case, we do not wish to relegate the Petitioner to the alternate remedy as provided under the Income Tax Act for the simple reason that not only had the A.O. failed to satisfy the jurisdictional conditions for invoking its power under Sections 147/ 148 of the Act, but had also failed t ..... X X X X Extracts X X X X X X X X Extracts X X X X
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