Amritsaria Mal Jain And Sons v. Principal Commissioner Of Income Tax, Patiala

CWP-4909-2022 (O&M) 1 IN THE HIGH COURT OF PUNJAB AND HARYANAAT CHANDIGARH CW P-4909-2022 (O&MDate of Decision: 15.07.2022 Amritsaria Mal Jain and sons ... Petitioner Versus Principal Commissioner of Income Tax, Patiala .... Respondent CORAM: HON'BLE MR. JUSTICE TEJINDER SINGH DHINDSAHON'BLE MR. JUSTICE PANKAJ JAIN Present:Mr. S.K. Mukhi, Advocatefor the petitioner. FE FE FS PANKAJ JAINJ. Petitioner an assessee under Income Tax Act, 196](hereinafter referred to as ‘Act’) is a partnership firm. By way of presentwrit petition, challenge has been laid to show cause notice issued underSection 263(1) of the Act qua assessment year 2017-18, whereby therevisional authority has asked the petitioner to show cause as to whyorder passed under Section 143(3) of the Act be not revised. ? As per the facts pleaded in the petition, survey undersection 133A of the Act was conducted at the premises of assessee on19.09.2016. The petitioner voluntarily surrendered total amount ofRs.30 lakhs vide Annexure P-1. The petitioner claimed that he has beenfiling his regular return. Return for the assessment year 2017-18 wasfiled on O2.11.2017 declaring an income of Rs.30,78,270/-, whereinsurrendered income was also disclosed treating the same as increase inclosing stock and increase in capital account of partners. As per the CWP-4909-2022 (O&M) 0 petitioner, assessment order under Section 143(3) of Act was passed on29.05.2019 accepting the returned income as submitted by the petitioner,The order has been placed on record as Annexure P-5. onThereafter on 05.10.2020, after a gap of more than 3 years,the petitioner has been served with the impugned notice under Section263(1) of the Act. The petitioner responded to the same vide reply dated17.08.2021. Betore any order could be passed by the revisionalauthority, the present writ petition has been filed. The matter came upfor preliminary hearing on 11.03.2022. On the request made by counselfor the petitioner, the same was adjourned to 16.03.2022. On16.03.2022, the matter was taken up through video conferencing in thelight of Pandemic Covid-19. Owning to connectivity issue, the matterwas again adjourned to 05.04.2022. On 05.04.2022, the following orderwas passed:- “Counsel seeks a short accommodation to citecertain judicial precedents of this Court to advancehis contention that exercise of jurisdiction underArticle 226 of the Constitution of India would bewatranted even at the stage of issuance of a showcause notice under Section 263 (1) of the Income TaxAct, 1961 and that too in a situation where theassessee has already responded and submitted a replythereto. 4On 04.05.2022, counsel further sought time to addressarguments and the matter was adjourned to 25.05.2022. On 25.05.2022)again on request made by counsel for the petitioner, the matter was CWP-4909-2022 (O&M) adjourned to 11.07.2022. 5]During arguments, counsel for the petitioner in response tothe order dated 05.04.2022, relies upon judgments of other High Courts1nNAshoka Buildcon Ltd. vs. Assistant Commissioner of Income Taxand another (2010) 325 ITR 574 (Bom), Virendra Kumar Jhamb vs.NK. Vohra, Commissioner ofIncome Tax and others (2009) 222 CTR(Bom) 8& and LG Electronics India (P) Ltd. vs. PrincipalCommissioner of Income Tax (2016) 143 DTR (All) 105to impressupon that the writ petition would be maintainable even against the showcause notice issued under Section 263(1) of the Act. At the same time,the counsel has admitted that the revisional authority has passed orderbefore 31.03.2022 during the pendency of the present writ petition, 6]We have heard learned counsel for the petitioner and havecarefully gone through the record of the case. 6]We have heard learned counsel for the petitioner and havecarefully gone through the record of the case. vaIn the facts and circumstances of the present case, it isadmitted position that pursuant to the show cause notice issued underSection 263(1) of the Act, petitioner filed reply before filing the writpetition and before the order could be passed, he filed the present writpetition. Even on 05.04.2022, when counsel for the petitioner soughttime to address arguments with respect to the maintainability of thepresent writ petition, he opted not to bring to the notice of this Court thatthe revisional authority has already passed order. Even thereafter, noeffort was made to place on record the said order and/or to challenge thesame. Be that as it may, the fact remains that the final order pursuant to|show cause notice already stands passed and the same is not subject CWP-4909-2022 (O&M) 4 matter of the present proceedings. 8 Keeping in view the said fact, we find that in the absence ofany challenge to the orders passed pursuant to show cause notice andthere being alternate remedy with the petitioner to challenge the finalorder, the present writ petition will not be maintainable. | QOWe are guided by law laid down by Apex Court in the case oftCommissioner ofIncome Tax, Gujarat vs. Vyaybha N. Chandran reported as(2013) 14 SCC 661, Wherein Apex Court held that: “ve XX XX 14|In our considered view, at the said stage ofissuance of the notices under Section 153C, theassessee could have addressed his grievances andexplained his stand to the Assessing Authority byfiling an appropriate reply to the said notices insteadof filing the Writ Petition impugning the said notices,It is settled law that when an alternate remedy isavailable to the aggrieved party, it must exhaust thesame before approaching the Writ Court. In.BellarySteels & Alloys Ltd. v. CCT, (2009) 17 SCC 547, thisCourt had allowed the assessee therein to withdrawthe original Writ Petition filed before the High Courtas the said proceedings came to be filed against theshow-cause notice and observed that the High Courtshould not have interfered in the matter as the WritPetition was filed without even reply to the showcause notice. This Court further observed as follows: *3....In the circumstances, we could hadismissed these civil appeals only on theeround of failure to exhaust statutory remedy,but for the fact that huge investments involvingdismissed these civil appeals only on theeround of failure to exhaust statutory remedy,but for the fact that huge investments involving ( the large number of industries is in issue.” 15.|We are fortified by the decision of this Court inIndo Asahi Glass Co. Ltd. vs. ITO (2002) 10 SCC$$$, wherein the assessee had approached this Courtagainst the judgment and order of the High Courtwhich had dismissed the Writ Petition filed by theassessee wherein challenge was made to the showcause notice issued by the Assessing Authority on theeround that alternative remedy was available to theassessee. This Court concurred with the findings andconclusions reached by the High Court and dismissedthe said appeal with the following observations: “5. This and the other facts cannot be taken upfor consideration by this Court for the firsttime. In our opinion, the High Court was rightin coming to the conclusion that it isappropriate for the appellants to file a reply tothe show-cause notice and take whateverdefence is open to them.” “5. This and the other facts cannot be taken upfor consideration by this Court for the firsttime. In our opinion, the High Court was rightin coming to the conclusion that it isappropriate for the appellants to file a reply tothe show-cause notice and take whateverdefence is open to them.” 16.|In the present case, the assessee has invokedthe Writ jurisdiction of the High Court at the firstinstance without first exhausting the alternateremedies provided under the Act. In our consideredOpinion, at the said stage of proceedings, the HighCourt ought not have entertained the Writ Petitionand instead should have directed the assessee to filereply to the said notices and upon receipt of adecision from the Assessing Authority, if for anyreason it is aggrieved by the said decision, to questionthe same before the forum provided under the Act.17/4In view of the above, without expressing anyopinion on the correctness or otherwise of theconstruction that is placed by the High Court on Section 153C, we set aside the impugned judgmentand order. xx xx xx’ 10.Same view has been taken by this Court inCWP-10480-ZOD? titled as“Anup Transport Co. Pvt. Ltd. vs. National FacelessAssessment Centre & others, decided on 30.05.2022, 11)In the matters cited by the petitioner, we find that thequestion with respect to the alternate remedy being available to thepetitioner has not been addressed. Hence, the same will not beapplicable to the present case. 12]As a sequel of aforesaid discussion, we find no merit in thepresent case and the same is dismissed.