9911796707
TMI Blog2025 (3) TMI 880X X X X Extracts X X X X X X X X Extracts X X X X ..... manually without mentioning the Document Identification Number (hereinafter referred to as "DIN") in its body and the same was passed in gross violation of the departmental circular bearing no. 19/2019 dated August 14, 2019 (hereinafter referred to as "the said circular") and the said Assessment Order should be treated as invalid and should be deemed to have never been issued as provided in the paragraph 4 of the said circular. b) The assessment order dated 31st March, 2022, which has been challenged in the present writ petition is barred by limitation, and therefore, respondent no. 1 has no jurisdiction to pass the said order. c) The legality and/or validity of the Assessment Order dated 31st March, 2022, passed under Section 143(3) read with Section 144B of the Act has been challenged, and no order under Section 148A (d) of the Act has been challenged as mentioned in the Affidavit-in-Opposition, which shows lack of application of mind. d) The time limit provided under the Act and as extended from time to time by TOLA for passing the assessment order for AY 2017-18, the time expired on 21st January, 2022.As the orderwas uploaded on the portal only on 23rd January 2023, the s ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s mandated by CBDT circular, DIN not being mentioned in the body of the order under Section 263 of the Income Tax Act and the order also not furnishing particulars of approval of higher authority in the prescribed format as per para 3 of the circular. The finding of the Tribunal was held to be correct and proper. In order to fortify the contention on the aforesaid issues relating to absence of DIN in the assessment order, several authorities were placed by the Learned Senior Advocate which included the following: Ashok Commercial Enterprises vs. ACIT [2023] 154 taxmann.com 144 (Bom); Hardik Deepak Salot and Ors vs. ACIT [WP No. 2944 of 2023 (Bom)]; CIT vs. Brandix Mauritius Holdings Ltd. [2023] 149 taxmann.com 238 (Del); Kamlesh Kumar Jha vs. PCIT [2023] 156 taxmann.com 622 (Del). 5. The next issue which has been canvassed by the petitioner refers to the assessment order being invalid and bad-in-law as it was passed beyond the period of limitation as provided under Section 153 of the Act. Atabular chart was relied upon which furnished the following details: Due date AY 17-18 As per section 153(1) read with section 153(4) 31-12-2020 As per TOLA and various notifica ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ct. 9. A perusal of the assessment year 2017-18 shows that the variation to the income declared in the return arises as a consequence of the TPO's order passed under Section 92CA (3) of the Act. It was contended that petitioner being an eligible assessee, it was incumbent upon the Respondent No.1 to pass a draft order in terms of Section 144C (1) of the Act. 10. Reference was made to Section 144C of the Income Tax Act and attention was drawn to Sub-Section (2) which provides that, on receipt of the draft order, the eligible assessee would forward within thirty days of receipt of such draft order his acceptance of the variation to the Assessing Officer or file his objections with the Dispute Resolution Panel and the Assessing Officer. Sub-Section (3) according to the learned advocate, provides that the Assessing Officer would complete the assessment on the basis of the draft order if the assessee intimates to the Assessing Officer the acceptance of the variation or no objections are received within the period specified in sub-Section (2). Also Sub-Section (4) provides that the order is to be passed within one month from the end of the month in which the acceptance is received or t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s jurisdiction under Article 226 of the Constitution of India. In order to fortify his argument, he relied upon Anshul Jain - versus- P.C.I.T. (2022/44A/ITR/251/3). Reference was also made to Whirlpool Corporation -versus- Registrar of Trademarks, Mumbai (1998) 8 SCC 1 and attention of the Court was drawn to the relevant observations of the Hon'ble Apex Court which is as follows: "Under Article 226 of the Constitution, the High Court, having regard to the facts of the case, has a discretion to entertain or not to entertain a writ petition. But the High Court has imposed upon itself certain restrictions one of which is that if an effective and efficacious remedy is available, the High Court would not normally exercise its jurisdiction. But the alternative remedy has been consistently held by this Court not to operate as a bar in at least three contingencies, namely, where the writ petition has been filed for the enforcement of any of the Fundamental Rights or where there has been a violation of the principle of natural justice or where the order or proceedings are wholly without jurisdiction or the vires of an Act is challenged. There is a plethora of case-law on this point but to ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... disputed questions of fact, the High Court may decide to decline jurisdiction in a writ petition. However, if the High Court is objectively of the view that the nature of the controversy requires the exercise of its writ jurisdiction, such a view should not readily be interfered. 15. Referring to Radha Krishna Industries -versus- State of Himachal Pradesh 2021 SCC online SC 334, it was submitted that the Hon'ble Apex Court was pleased to hold that while High Court can entertain application under Article 226 of the Constitution of India, it must not do so when the aggrieved person has an effective alternative remedy available in law. It was additionally submitted that the order passed by the Hon'ble Supreme Court in Red Chilli International Sales (2023/146/taxmen.com/224/SC) is not applicable in the present case as it was observed by the Hon'ble Apex Court that the issue would be examined in depth by the High Court if and when it arises for consideration. 16. In respect of non-mentioning of DIN it was submitted on behalf of the respondent that the same is not an illegality but is merely an irregularity and that is why the Hon'ble Apex Court in CIT -versus- Brandix Manrities Holdi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... y to all reassessment notices issued between April01 and June 30, 2021. 19. Learned advocate also referred to the directions of the Hon'ble Supreme Court during the COVID-19 outbreak in Suo-Motu Writ petition(C) No. 3 of 2020 and submitted that the Hon'ble Apex Court was pleased to exclude the period of limitation as has been prescribed under any general or special laws in respect of all judicial or quasi-judicial proceedings. It was further clarified that the limitation which would have expired during the period between 15.03.2020 till 28.02.2022 shall have a limitation period of 90 days from 01.03.2022. In the event the actual balance period of limitation remaining with effect from 01.03.2022 is greater than 90 days, the longer period shall apply. As Income Tax proceedings are quasi-judicial proceedings, the time limit for completion of Assessment was extended to 30th May, 2022. The assessment order was passed on 31st March,2022 which is well within the limitation date as per the provisions of Section 153 of the Income Tax Act 1961. But the same was not visible in the Income Tax e-filing Portal due to certain technical glitch. It was finally submitted that the writ petition shou ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... India. Needless to say that very recently in Bank of Baroda -versus- Farooq Ali Khan, (2025) SCC Online SC 374 it has been observed that the statutory Tribunals are constituted to adjudicate and determine certain questions of law and fact, the High Court should not substitute themselves as the decision-making authority while exercising their powers of judicial review. 23. Further, in PHR Invent Educational Society -versus- UCO Bank & Ors. (2024) 6 SCC 579 the Hon'ble Supreme Court has been pleased to hold in paragraphs 22, 23 and 37 as follows: "22. The law with regard to entertaining a petition under Article 226 of the Constitution in case of availability of alternative remedy is well settled. "43. Unfortunately, the High Court [Satyawati Tondon v. State of U.P., 2009 SCC OnLine All 2608] overlooked the settled law that the High Court will ordinarily not entertain a petition under Article 226 of the Constitution if an effective remedy is available to the aggrieved person and that this rule applies with greater rigour in matters involving recovery of taxes, cess, fees, other types of public money and the dues of banks and other financial institutions. In our view, while deali ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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. It has been held that, though the powers of the High Court under Article 226 of the Constitution are of widest amplitude, still the courts cannot be oblivious of the rules of self-imposed restraint evolved by this Court. The Court further held that though the rule of exhaustion of alternative remedy is a rule of discretion and not one of compulsion, still it is difficult to fathom any reason why the High Court should entertain a petition filed under Article 226 of the Constitution. 37. It could thus clearly be seen that the Court has carved out certain exceptions when a petition under Article 226 of the Constitution could be entertained in spite of availability of an alternative remedy. Some of them are thus: (i) where the statutory authority has not acted in accordance with the provisions of the enactment in question; (ii) it has acted in defiance of the fundam ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... relief. In Ram and Shyam Co. v. State of Haryana [(1985) 3 SCC 267] this Court has noticed that if an appeal is from "Caesar to Caesar's wife" the existence of alternative remedy would be a mirage and an exercise in futility. 17. In the instant case, neither has the writ petitioner assessee described the available alternate remedy under the Act as ineffectual and non-efficacious while invoking the writ jurisdiction of the High Court nor has the High Court ascribed cogent and satisfactory reasons to have exercised its jurisdiction in the facts of the instant case. In light of the same, we are of the considered opinion that the writ court ought not to have entertained the writ petition filed by the assessee, wherein he has only questioned the correctness or otherwise of the notices issued under Section 148 of the Act, the reassessment orders passed and the consequential demand notices issued thereon." 25. Having considered that the petitioner has directly approached the jurisdiction of this Court under Article 226 of the Constitution of India and called upon this Court to adjudicate issues relating to facts and the application of law on the said set of facts, I am of the opini ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
