TMI Blog2023 (12) TMI 1134X X X X Extracts X X X X X X X X Extracts X X X X ..... must be presumed, unless the contrary is proved, that administration and application of a particular law would be done not with an evil eye and unequal hand . Consequently, at this stage, Section 115BBE of the Act cannot be held unconstitutional on the ground that there is an apprehension of misuse of the said provision. Further, it is settled law that the Act provides a complete machinery for assessment/re-assessment of tax and the assessee is not permitted to abandon that machinery to invoke jurisdiction of the High Court under Article 226 of the Constitution [See Commissioner of Income Tax Ors. vs. Chhabil Dass Agarwal,[ 2013 (8) TMI 458 - SUPREME COURT] . Consequently, the present writ petitions and pending applications are ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... issue of limitation, being a mixed question of fact and law in the present batch of matters, should be raised before the Appellate Authorities. 4. At this stage, learned counsel for the petitioner states that the issue of constitutional validity of Section 115BBE of the Act cannot be adjudicated upon by the Appellate Authority. In support of his submission, he refers to ground T of one of the paper books. The same is reproduced hereinbelow:- T. The Petitioner further submits that the invocation of section 115BBE in the present case is grossly unfair. The Petitioner seeks the indulgence of our Hon'ble Court in determining the Constitutional vires of section 115BBE of the Act in as much as the same is violative of Article 14, Arti ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... olutely unfair levy of tax because the Assessee in whose case the said section 68 is applied would end up being charged with more than double the tax liability [since from AY 2017-18 tax u/s 115BBE is 60% plus 25% surcharge and further penalty and interest]. In an even worse situation like the present one, the Assessing Officer could simply invoke section 68 simply to safeguard his invalid action and consequently subject the Assessee to the rigours of section 115BBE simply because the exercise of discretion was inappropriate. It is with utmost respect submitted that the Act, does not provide a safeguard against a biased mind. It is for this reason, the Petitioner seeks indulgence of this Hon ble Court in redressing the grievance of the inju ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... en one set of persons and another, one has got to take into account normal human behaviour and not behaviour which is abnormal. It is not every fancied possibility of discrimination but the real risk of discrimination that we must take into account. This is not one of those cases where discrimination is writ large on the face of the statute. Discrimination may be possible but is very improbable . (emphasis supplied) 6. In Collector of Customs v. Nathella Sampathu Chetty, 1962 SCC OnLine SC 30 the Supreme Court has held as under:- 34....This Court has held in numerous rulings, to which it is unnecessary to refer, that the possibility of the abuse of the powers under the provisions contained in any statute is no ground ..... X X X X Extracts X X X X X X X X Extracts X X X X
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