Cwp v. Deputy Commissioner, Circle Shimla, Income Tax Office & Others

IN THE HIGH COURT OF HIMACHAL PRADESH SHIMLA CWP No. 3072 of 2016 alongwith CWP No. 3078 of 2016 and CWP No. 3080 of 2016 Reserved on: 22.12.2016 Date of Decision: December 26, 2016 1.CWP No. 3072 of 2016 Sh. Virbhadra Singh … Petitioner. Versus Deputy Commissioner, Circle Shimla, Income Tax Office & others. ..Respondents. 2.CWP No. 3078 of 2016 Smt. Pratibha Singh … Petitioner. Versus Deputy Commissioner, Circle Shimla, Income Tax Office & others. ..Respondents. 3.CWP No. 3080 of 2016 Sh. Vikramaditya Singh … Petitioner. Versus Deputy Commissioner, Circle Shimla, Income Tax Office & others. ..Respondents. Coram: The Hon’ble Mr. Justice Sanjay Karol, Judge. The Hon’ble Mr. Justice Vivek Singh Thakur, Judge. Whether approved for reporting?[1]Yes For the Petitioner: M/s Vishal Mohan, Pranay Pratap Singh, Sushant Keprate, Aditiya Sood and Jai Vardhan Khurana, Advocates, for the petitioner(s). For the Respondents: Mr. Vinay Kuthiala, Sr.Advocate with Ms Vandana Kuthiala, Advocate and Mr. Diwan Singh Negi, Advocate, for the respondents. Sanjay Karol, J. Invoking Extra Ordinary Writ jurisdiction of this Court, petitioner Sh. Virbhadra Singh lays challenge to the impugned notice dated 29.3.2016 (Annexure P-2) and order dated 24.11.2016 (Annexure P-5), whereby proceedings for assessment stands initiated by the Revenue under the provisions of Income Tax Act, 1961 (hereinafter referred to as the Act). 2.Petitioners Smt. Pratibha Singh (CWP No. 3078 of 2016) and Sh. Vikramaditya Singh (CWP No. 3080 of 2016) by way of separate petitions also lay challenge to similar notice/order. As prayed for, by the learned 1 Whether reporters of the local papers may be allowed to see the judgment? Yes. counsel, these petitions were heard together and in principle, only facts of petitioner Sh. Virbhadra Singh (CWP No. 3072 of 2016), were argued before us, for the difference pertained to the amount of income declared and the dates of filing of returns under Section 139 of the Act. Hence we proceed to discuss the facts of CWP No. 3072 of 2016. 3.The issues, which this Court is called upon to consider, are: (a) whether an order passed by an authority under the Act, in view of availability of equally efficacious remedy, is amenable to interference by way of writ jurisdiction, (b) whether exercise of power by the jurisdictional authority, in initiating action for assessment of escaped income, is justiciable by a Writ Court, (c) whether the jurisdictional authority had sufficient material to form reasons of belief, (d) whether such reasons do exist and if so, can this Court go into sufficiency thereof, (e) whether sanction accorded by the appropriate authority is in accordance with law, (f) whether the order passed by the authority is in conformity with the settled procedure of law, and (g) whether action of the authorities below can be said to be arbitrary, whimsical or capricious. 4.Petitioner, a permanent resident of Himachal Pradesh, is regularly assessed to income tax. On 02.08.2012, he filed a return, declaring his net taxable income for the assessment year 2012-13 (hereinafter referred to as the relevant year), to be `17,60,090/- (Annexure P-1, page 11), and the source mainly being salary and income from house property. Prima facie, finding certain income to have escaped assessment, on 29.03.2016 he received a notice, under Section 148 of the Act, so issued by the Deputy Commissioner of Income Tax, Shimla (Annexure P-2, page 15). 5.Pursuant thereto, on 20.04.2016, petitioner filed a fresh return declaring the very same income. Also a request for supply of “reasons” for re-opening the case was made, which was duly complied with vide communication dated 09.05.2016 (Annexure P-3, page 16). Objections thereto, so filed by the petitioner on 29.06.2016 (Annexure P-4, page 59), stand rejected by the Assessing Officer in terms of order dated 24.11.2016 (Annexure P-5, page70). 5.Pursuant thereto, on 20.04.2016, petitioner filed a fresh return declaring the very same income. Also a request for supply of “reasons” for re-opening the case was made, which was duly complied with vide communication dated 09.05.2016 (Annexure P-3, page 16). Objections thereto, so filed by the petitioner on 29.06.2016 (Annexure P-4, page 59), stand rejected by the Assessing Officer in terms of order dated 24.11.2016 (Annexure P-5, page70). 6.Perusal of aforesaid communications reveals that on 29.03.2016, the Assessing Officer, forwarded his reasons of belief to the superior officer i.e. Joint Commissioner of Income Tax, Shimla, and the very same day, the said officer, after expressing his satisfaction thereupon, on finding the case fit for issuance of notice under Section 148 of the Act, returned the file and same day, notice issued by the Assessing Officer, was served upon the petitioner. 7.It was the information received from the Deputy Director of Income Tax (Investigation), Faridabad, vide communication dated 15.12.2015, which led the Assessing Officer initiate action against the petitioner under Section 147 of the Act. 8. Survey conducted with respect to the affairs of one Vakamulla Chandrashekhar (hereinafter referred to as the loaner) revealed that in the relevant year, following payments were made: (i) `2.4 Crores to Sh. Virbhadra Singh; (ii) `1.5 Crore to Smt. Pratibha Singh; and (iii) ` 2 Crores to Sh. Vikramaditya Singh. The loaner stated such payments to be interest free loans, made out of his “agricultural income” and “unsecured loans” so received by him from third parties. Prima facie, such plea was found to be not true, hence on careful appreciation of material before him, the Assessing Officer, formed reasons of belief, relevant portion whereof, is extracted herein under:- “4. Summary of findings I have carefully perused the return of income of Sh. Virbhadra Singh (Assessment Year 2012-13) and information received from and copies of the statements recorded by the Investigation Wing and the following facts emerge:- income of Sh. Virbhadra Singh (Assessment Year 2012-13) and information received from and copies of the statements recorded by the Investigation Wing and the following facts emerge:- 4.1 Sh. Virbhadra Singh is showing his return with gross total income of Rs.18,66,089/-from salary and income from other sources.with gross total income of Rs.18,66,089/-from salary and income from other sources. 4.2 Sh. Virbhadra Singh has received interestfree unsecured loans of Rs. 2.4 Crores fromSh. Vakamulla Chandrashekhar in Financial Year 2011-12. free unsecured loans of Rs. 2.4 Crores fromSh. Vakamulla Chandrashekhar in Financial Year 2011-12. Sh. Vakamulla Chandrashekhar submitted that he advanced the above mentioned loansto Sh. Virbhadra Singh out of his agricultural income of Rs. 3.4 Crores in Financial Year 2011-12 and out of unsecured loans taken by him fromSh.Gurusharan Singh(Rs. 0.49 Crores), Jai Bharat Foods (Rs. 0.73 Crores) etc. submitted that he advanced the above mentioned loansto Sh. Virbhadra Singh out of his agricultural income of Rs. 3.4 Crores in Financial Year 2011-12 and out of unsecured loans taken by him fromSh.Gurusharan Singh(Rs. 0.49 Crores), Jai Bharat Foods (Rs. 0.73 Crores) etc. 4.3 However, it was proved that Sh. Vakamulla Chandrashekhar was not having 4.4 sufficient agricultural land to substantiate his claim. 4.5 Sh. Ram Parakash Bhatia, who was controlling various paper entities including Jai Bharat Foods, admitted on oath that he had provided accommodation entries to Sh. Vakamulla Chandrashekhar in lieu of unaccounted cash. He also stated on oath that no actual agriculture produce were purchased by him from Sh. Vakamulla Chandrashekhar. controlling various paper entities including Jai Bharat Foods, admitted on oath that he had provided accommodation entries to Sh. Vakamulla Chandrashekhar in lieu of unaccounted cash. He also stated on oath that no actual agriculture produce were purchased by him from Sh. Vakamulla Chandrashekhar. 4.3 However, it was proved that Sh. Vakamulla Chandrashekhar was not having 4.4 sufficient agricultural land to substantiate his claim. 4.5 Sh. Ram Parakash Bhatia, who was controlling various paper entities including Jai Bharat Foods, admitted on oath that he had provided accommodation entries to Sh. Vakamulla Chandrashekhar in lieu of unaccounted cash. He also stated on oath that no actual agriculture produce were purchased by him from Sh. Vakamulla Chandrashekhar. controlling various paper entities including Jai Bharat Foods, admitted on oath that he had provided accommodation entries to Sh. Vakamulla Chandrashekhar in lieu of unaccounted cash. He also stated on oath that no actual agriculture produce were purchased by him from Sh. Vakamulla Chandrashekhar. 4.6 Sh. Gurusharan Singh denied giving any loan to Sh. Vakamulla Chandrashekhar. loan to Sh. Vakamulla Chandrashekhar. 4.7 Thus, the creditworthiness of Sh.Vakamulla Chandrashekhar remainunproved to advance such huge amount of Rs. 2.4 Crores as interest free unsecured loan to Sh. Virbhadra Singhin Assessment Year 2012-13. Vakamulla Chandrashekhar remainunproved to advance such huge amount of Rs. 2.4 Crores as interest free unsecured loan to Sh. Virbhadra Singhin Assessment Year 2012-13. 4.8 From the discussion made above, it is clear that Rs. 2.4 Crores received by Sh. Virbhadra Singh in Assessment Year 2012-13 from Sh. Vakamulla Chandrashekhar was unexplained credit in the hand of Sh. Virbhadra Singh and needs to be assessed in the hands of Sh. Virbhadra Singh u/s 68 of the Income Tax Act, 1961. Reasons forming belief In view of the above, I have reasons to believe that an amount of Rs. 2.4 Crores which was received by Sh. Virbhadra Singh from Sh. Vakamulla Chandrashekhar in Assessment Year 2012-13 as interest free unsecured loan is actually unexplained credit in the hand of Sh. Virbhadra Singh, which has escaped assessment in the case of Sh. Virbhadra Singh for Assessment Year 2012-13 within the meaning of section 147/148 of the Income Tax Act, 1961.” (Emphasis supplied) 9.Though factum of receipt of such payments came to be admitted by the petitioner, only in the objections filed in response to a notice issued under Section 148 of the Act, but he justified the same by raising a plea that: (i) In the year 2014, the amount stood repaid alongwith interest @ 10%; (ii) There was no dispute about (a) identity of the person, (b) genuineness of the transaction, (c) creditworthiness of the loaner; (iii) In the relevant year, the loaner had himself disclosed an income of `65,59,020/-, which was in addition to “huge agricultural income”. (iv) The relevant jurisdictional authority, vide order dated 27.03.2015 had already assessed the amount in question, in the hands of the loaner (v) As assessee was not obliged to maintain books of accounts, provisions of Section 68 of the Act were not applicable. (vi) Impugned action was a result of total non-application of mind. 10.In the writ petition no additional ground stands pleaded. 11. Prima facie finding the explanation not to be satisfactory, such objections came to be rejected by the Assessing Officer by inter alia observing that: (i) Parties contradicted with regard to the nature of loan; (ii) in the absence of any proof or evidence, justifying income from agricultural source or unsecured loans, creditworthiness of the creditor remained to be examined; (iii) Though in the hands of the loaner, a sum of `3,40,85,000/-, so claimed as income from agriculture was assessed as an income from undisclosed source, under Section 68 of the Act, yet genuineness of the transaction required examination. More so, when such assessment was subject matter of challenge in an appeal before the appropriate jurisdictional authority; (iv) Even though assessee was not maintaining books of accounts, but however, information to which only he had access, in the nature of bank accounts etc. required submission and examination, in deciding a jurisdictional issue of fact; (v) In the absence of any prior assessment, there is no jurisdictional error in the Assessing Officer, calling upon the assessee to place all material in its power and possession, enabling the officer to decide the fact in issue; (vi) There was proper application of mind by the sanctioning authority; and (vii) Assessee’s participation in the assessment proceedings would also help proper adjudication of the case on merits. 12.In response to the petition, Revenue justifies its action by (i) expressing doubts about the creditworthiness of the loaner; (ii) the nature of transaction; (iii) Revelation of a fact that in the relevant year, certain investments for purchase of a Farm House at Delhi, were made by the children of the petitioner in the name of M/s Maple Destination and Dreambuilt Pvt. Ltd. Company; (iv) Non-cooperative attitude of the assessee in: (a) not furnishing information and placing on record material within his power and possession of which only he had access; (b) not responding to a detailed questionnaire dated 23.05.2016; (c) placing on record only unauthenticated photocopies of few bank accounts; (v) Uncertainty with regard to the order of assessment made in the case of the loaner by the jurisdictional authority; (vi) Reasons of belief being only prima facie in nature; and (vii) The assessee having ample opportunity of placing all material and substantiating his case. 13.During the course of hearing, learned counsel cited following decisions which we have considered. The need to clarify such fact arises only for the reason that in the pleadings and/or proceedings conducted so far by the Assessing Officer, parties have referred to several decisions. Mr. Vishal Mohan, learned counsel cited:- (i)GKN Driveshafts (India) Ltd. V. Income-Tax Officer and others, (2003) 259 ITR 19 : (2003) 1 SCC 72; (ii) Ajanta Pharma Ltd. v. Assistant Commissioner of Income-Tax and others, (2004) 267 ITR 200 (Bombay); (iii) Income-Tax Officer, I Ward, Distt. VI, Calcutta, and others v. Lakhmani Mewal Das, (1976) 103 ITR 437 : (1976) 3 SCC 757; (iv) Sagar Enterprises v. Assistant Commissioner, (2002) 257 ITR 335 (Guj); (v) M/s Chhugamal Rajpal v. S.P. Chaliha and others, (1971) 1 SCC 453; (vi) S.P. Agarwalla alias Sukhdeo Prasad Agarwalla v. Income-Tax Oficer, E-Ward, Dist. III(2), Calcutta and others, (1983) 140 ITR 1010 (Calcutta); (vii) Arjun Singh, Ajay Singh v. Assistant Director of Income-Tax (Investigation), (2000) 246 ITR 363 (Madhya Pradesh); (viii) Central India Electric Supply Co. Ltd. v. Income-Tax Officer, (2011) 333 ITR 237 (Delhi); and ITA No.45 of 2007, decided on 14.3.2012, titled as Commissioner of Income Tax, Shimla v. M/s Sahil Knit Fab. Mr. Vinay Kuthiala, learned Senior Counsel cited:- (i)CWP No.347 of 2014, decided on 4.7.2014, titled as Joint Commissioner of Income Tax v. Kalanithi Maran; (ii) Commissioner of Income Tax, Gujarat v. Vijaybhai N. Chandrani, (2013) 14 SCC 661; (iii) Commissioner of Income Tax and others v. Chhabil Dass Agarwal, (2014) 1 SCC 603; (iv) Lalji Haridas v. Income-Tax Officer and another, (1961) 43 ITR 387; (v) Assistant Commissioner of Income Tax vs. Rajesh JhaveriStock Brokers Private Limited, (2008) 14 SCC 208 = (2007) 291 ITR 500; (vi) Raymond Woolen Mills Ltd. vs. ITO (1999) 236 ITR 34 (SC) : 2008 (14) SCC 218; (vii) Phool Chand Bajrang Lal and another v. Income-Tax Officer and another, (1993) 203 ITR 456 : (1993) 4 SCC 77; (viii) Ess Ess Kay Engineering Co. P. Ltd. v. Commissioner of Mr. Vinay Kuthiala, learned Senior Counsel cited:- (i)CWP No.347 of 2014, decided on 4.7.2014, titled as Joint Commissioner of Income Tax v. Kalanithi Maran; (ii) Commissioner of Income Tax, Gujarat v. Vijaybhai N. Chandrani, (2013) 14 SCC 661; (iii) Commissioner of Income Tax and others v. Chhabil Dass Agarwal, (2014) 1 SCC 603; (iv) Lalji Haridas v. Income-Tax Officer and another, (1961) 43 ITR 387; (v) Assistant Commissioner of Income Tax vs. Rajesh JhaveriStock Brokers Private Limited, (2008) 14 SCC 208 = (2007) 291 ITR 500; (vi) Raymond Woolen Mills Ltd. vs. ITO (1999) 236 ITR 34 (SC) : 2008 (14) SCC 218; (vii) Phool Chand Bajrang Lal and another v. Income-Tax Officer and another, (1993) 203 ITR 456 : (1993) 4 SCC 77; (viii) Ess Ess Kay Engineering Co. P. Ltd. v. Commissioner of Income Tax, 247 ITR 818; (ix) Decision dated 04.03.2016, rendered by the Calcutta High Court in ITA No.297 of 2006, titled as Prem Chand Shaw (Jaiswal) V. Assistant Commissioner, Circle-38, Kolkata & Anr; (x) Sunil Kumar Jain v. CIT, 284 ITR 626 (Allahabad); (xi) Mangilal Jain V/S Income Tax Officer, (2009) 315 ITR 105 (Mad); (xii) Shankar Industries v. Commissioner of Income Tax, Central, 114 ITR 689 (Cal); (xiii) Civil Misc. Writ Petition No. 181 (Tax) of 2004, decided on 16.09.2006, by Allahabad High Court, titled as M/s Ema India Ltd. Versus Asstt. Commissioner of Income Tax Central Circle-I; (xiv) Sasi Enterprises v. Assistant Commissioner of Income Tax, (2014) 5 SCC 139; and (xv) Commissioner of Income tax v. Sophia Finance Ltd., (1994) 205 ITR 98. 14.The relevant provisions, to which our attention is invited are Sections 68, 147 to 153 of the Act. 15. 15.Section 147 is evidently clear. Insofar as its application to the instant facts is concerned, what is required, is fulfillment of essential ingredient(s) that: (i) The Assessing Officer (ii) must have reason(s) to believe, (iii) that any income chargeable to tax has escaped assessment (iv) for any assessment year, (v) which he is empowered to (vi) may assess, and (vii) if the income is understated by the assessee, it shall be deemed to be an income chargeable to tax having escaped assessment. 16.However, for initiating such action, in compliance of Section 148, the Assessing Officer has to (i) record his reasons (ii) forward the same to an authorized officer, as the case may be, so mentioned in Section 151, (iii) who, shall record his satisfaction on the reasons recorded by the Assessing Officer that it is a fit case for issuance of such notice, and only thereafter, (iv) The Assessing Officer shall issue a notice to the assessee, requiring him/her to furnish within a specified period, return of his/her income, in a prescribed form. 17.In view of the statutory mandate, so contained in Section 153, in the given facts and circumstances, assessment proceedings are necessarily required to be completed before 31.12.2016. 18.Section 68, which deals with the concept of deemed income, provides that where any sum is found credited in the books of an assessee maintained for any previous year, and he offers no explanation about the nature and source thereof or the explanation offered by him is not, in the opinion of the Assessing Officer, satisfactory, the sum so credited may be charged to income-tax as the income of the assessee. 19.As a matter of abandoned caution, in a tabulated form, we reproduce facts, relevant to each one of the petitioners: 20.It is a common case of parties that original return dated 02.08.2012 filed by the petitioner, in compliance of Section 139 was not subjected to assessment under sub-section (3) of Section 143. Return dated 02.08.2012, came to be processed only under sub-section (1) of Section 143, in which there is no reference of these transactions. Thereafter, the first communicationinter se the parties, is the notice dated 29.03.2016, issued by the Assessing Officer under Section 148 of the Act. SCOPE OF JURISDICTION him is not, in the opinion of the Assessing Officer, satisfactory, the sum so credited may be charged to income-tax as the income of the assessee. 19.As a matter of abandoned caution, in a tabulated form, we reproduce facts, relevant to each one of the petitioners: 20.It is a common case of parties that original return dated 02.08.2012 filed by the petitioner, in compliance of Section 139 was not subjected to assessment under sub-section (3) of Section 143. Return dated 02.08.2012, came to be processed only under sub-section (1) of Section 143, in which there is no reference of these transactions. Thereafter, the first communicationinter se the parties, is the notice dated 29.03.2016, issued by the Assessing Officer under Section 148 of the Act. SCOPE OF JURISDICTION 21.Scope of interference with an order passed by an authority under a Statute, providing an equally alternate and efficacious remedy, is now well settled. The issue is no longer res integra, hence we restrict the discussion only to the decisions pertaining to the Statute in issue. 22.A Constitution Bench of the apex Court in Thansingh Nathmal v. The Superintendent of Taxes, Dhubri and others, AIR 1964 SC 1419, observed that: “7………The jurisdiction of the High Court under Art. 226 of the Constitution is couched in wide terms and the exercise thereof is not subject to any restrictions except the territorial restrictions which are expressly provided in the Articles. But the exercise of the jurisdiction is discretionary: it is not exercised merely because it is lawful to do so. The very amplitude of the jurisdiction demands that it will ordinarily be exercised subject to certain self-imposed limitations. Resort to that jurisdiction is not intended as an alternative remedy for relief which may be obtained in a suit or other mode prescribed by statute. Ordinarily the Court will not entertain a petition for a writ under Art. 226, where the petitioner has an alternative remedy, which without being unduly onerous, provides an equally efficacious remedy. Again the High Court does not generally enter upon a determination of questions which demand an elaborate examination of evidence to establishthe right to enforce which the writ is claimed. The High Court does not therefore act as a court ofappeal against the decision of a court or tribunal, to correct errors of fact, and does not by assuming jurisdiction under Art. 226 trench upon an alternative remedy provided by statute forobtaining relief. Where it is open to the aggrieved petitioner to move another tribunal, or even itself in another jurisdiction for obtaining redress in the manner provided by a statute, the High Court normally will not permit by entertaining a petition under Art. 226 of the Constitution the machinery created under the statute to be bypassed, and will leave the party applying to it to seek resort to the machinery so set up.” (Emphasis supplied) 23.A three-Judge Bench of the apex Court in The Commissioner of Income-tax, Gujarat v. M/s A. Raman and Co., AIR 1968 SC 49, held that: “6. The High Court exercising jurisdiction under Article 226 of the Constitution has power to set aside a notice issued under Section 147 of the Income-tax Act, 1961, if the condition precedent to the exercise of the jurisdiction does not exist. The Court may, in exercise of its powers, ascertain whether the Income-tax Officer had in his possession any information: the Court may also determine whether from that information the Income-tax Officer may have reason to believe that income chargeable to tax had escaped assessment. But the jurisdiction of the Court (Emphasis supplied) 23.A three-Judge Bench of the apex Court in The Commissioner of Income-tax, Gujarat v. M/s A. Raman and Co., AIR 1968 SC 49, held that: “6. The High Court exercising jurisdiction under Article 226 of the Constitution has power to set aside a notice issued under Section 147 of the Income-tax Act, 1961, if the condition precedent to the exercise of the jurisdiction does not exist. The Court may, in exercise of its powers, ascertain whether the Income-tax Officer had in his possession any information: the Court may also determine whether from that information the Income-tax Officer may have reason to believe that income chargeable to tax had escaped assessment. But the jurisdiction of the Court extends no further. Whether on the information in his possession he should commence a proceeding for assessment or reassessment, must be decided by the Income-tax Officer and not by the High Court. The Income-tax Officer alone is entrusted with the power to administer the Act; if he hasinformation from which it may be said prima facie, that he had reason to believe that incomechargeable to tax had escaped assessment, it isnot open to the High Court, exercising powersunder Article 226 of the Constitution, to set aside or vacate the notice for reassessment on a re-appraisal of the evidence.” (Emphasis supplied) 24.In Raymond Woolen Mills Ltd. (supra), their Lordships of the Supreme Court rejected challenge to the issuance of notice for reassessment by observing that at the stage of notice, court can only consider whether there is a prima facie case for reassessment. Reopening of proceedings cannot be quashed by going into the “sufficiency” or “correctness” of the material relied upon by the assessing authority. 25.In Vijaybhai N. Chandrani (supra), the Apex Court while reversing the view taken by the High Court in quashing a notice of reassessment issued under Section 153-C of the Act, by relying upon its earlier decisions, in Bellary Steels & Alloys Ltd. V. CCT, (2009) 17 SCC 547; and Indo Asahi Glass Co. Ltd. v. ITO, (2002) 10 SCC 444, directed the assessee to first exhaust alternate remedies provided under the Act, by filing reply to the notice and take consequential action, if any, before the jurisdictional forum. 26.In Chhabil Dass Aggarwal (supra), in somewhat similar circumstances, where notice issued under Section 148 of the Act and the ex-parte assessment proceedings came to be quashed by a writ Court, the Apex Court, by referring to its several judicial pronouncements, including that of the Constitution Bench (Five Judges) in K.S. Rashid and Son v. Income Tax Investigation Commission, AIR 1954 SC 207, observed that restriction of not entertaining a writ petition, when an efficacious and alternate remedy is available, is self imposed. It is essentially a rule of policy, convenience and discretion, rather than the rule of law. Only where an exceptional case, warranting interference; existence of sufficient grounds; for invoking extra ordinary jurisdiction, is made out, power, which is discretionary in nature, must be exercised. Where hierarchy of appeal is provided by a statute, party must exhaust the statutory remedies before invoking the writ jurisdiction. The right or liability created by a statute giving a special remedy for enforcing it must be availed of. The Court reiterated the principle laid down in Union of India Versus Guwahati Carbon Ltd., (2012) 11 SCC 651 and in Munshi Ram Versus Municipal Committee, Chheharta, (1979) 3 SCC 83, that when a statute provides for a person aggrieved, a particular remedy to be sought in a particular Forum and in a particular way, it must be sought in that manner, to the exclusion of all other modes and Forums. But it did recognize certain exceptions to this rule and that, inter alia being, where the action of the statutory authority is not in accordance with the statutory provisions; in defiance of fundamental principles of judicial procedure; and in total violation of principle of natural justice. it must be availed of. The Court reiterated the principle laid down in Union of India Versus Guwahati Carbon Ltd., (2012) 11 SCC 651 and in Munshi Ram Versus Municipal Committee, Chheharta, (1979) 3 SCC 83, that when a statute provides for a person aggrieved, a particular remedy to be sought in a particular Forum and in a particular way, it must be sought in that manner, to the exclusion of all other modes and Forums. But it did recognize certain exceptions to this rule and that, inter alia being, where the action of the statutory authority is not in accordance with the statutory provisions; in defiance of fundamental principles of judicial procedure; and in total violation of principle of natural justice. 27.Justifying the action of the petitioner in bypassing the statutory remedy and directly assailing the notice for reassessment, Mr. Vishal Mohan, learned counsel, seeks reliance on the decision rendered by the Bombay High Court, in Ajanta Pharma Ltd. (supra). The decision came to be rendered in the given facts and circumstances, where reason for reassessment being non-discloser of invoice/details of the purchase of the trading goods exported and failure to co-relate the trading exports with the trading goods exported was found to have been non-existent, in fact contradicted from the record rendering the reasons of the Assessing Officer to be totally “flimsy” and not “sufficient to draw conclusion about the escapement of income” and there being “no material” before the Assessing Officer, entitling him to reopen the case of assessment, the Court found the notice so issued to be ex-facie, bad in law. Hence it exercised its discretionary power in quashing such action. Significantly, the Court observed that a writ would lie only if the impugned action is ex-facie without jurisdiction or again in excess of the jurisdiction vested in the authority or the action being totally arbitrary. It cautioned that extra ordinary jurisdiction cannot be allowed to be availed as a matter of course and while deciding the issue of jurisdiction, finding of the authority on the factual aspect may be necessary, in which case, necessarily the assessee would be required to approach the Assessing Officer. 28.Mr. Vinay Kuthiala, learned Senior Counsel, also invites our attention to a decision dated 16.09.2006, rendered in Ema India Ltd. (supra), which we need not discuss in view of the settled position of law. 29.Thus it cannot be said that jurisdiction of this Court, in entertaining a petition even when an equally efficacious remedy is available to a party, is totally ousted. Notwithstanding the statutory remedies available to the aggrieved party, restriction imposed by a writ Court is more in the nature of restraint. With the ever increasing and growing scope of judicial review, exercise of extraordinary writ jurisdiction cannot be circumscribed. 30.But however, in the given facts and circumstances, for reasons to follow, we do not find the petitioner to have made out a case warranting interference in a petition filed under Article 226 of the Constitution of India. 31.While contending that this Court has no jurisdiction to quash the order of rejection of objections by the Assessing Officer, Mr. Vinay Kuthiala, learned Senior Advocate, seeks reliance on the decision rendered by the High Court of Madras in Kalanithi Maran(supra). We are unable to persuade ourselves to agree with such submission. The procedure for filing the objections and obligation to decide the same, came to be evolved with the following observations made by the apex Court in GKN Driveshafts (supra), wherein it is held as under: 30.But however, in the given facts and circumstances, for reasons to follow, we do not find the petitioner to have made out a case warranting interference in a petition filed under Article 226 of the Constitution of India. 31.While contending that this Court has no jurisdiction to quash the order of rejection of objections by the Assessing Officer, Mr. Vinay Kuthiala, learned Senior Advocate, seeks reliance on the decision rendered by the High Court of Madras in Kalanithi Maran(supra). We are unable to persuade ourselves to agree with such submission. The procedure for filing the objections and obligation to decide the same, came to be evolved with the following observations made by the apex Court in GKN Driveshafts (supra), wherein it is held as under: “5. We see no justifiable reason to interfere with the order under challenge. However, we clarify that when a notice under section 148 of the Income Tax Act is issued, the proper course of action for the noticee is to file return and if he so desires, to seek reasons for issuing notices. The assessing officer is bound to furnish reasons within a reasonable time. On receipt of reasons, the noticee is entitled to file objections to issuance of notice and the assessing officer is bound to dispose of the same by passing a speaking order. In the instant case, as the reasons have been disclosed in these proceedings, the assessing officer has to dispose of the objections, if filed, by passing a speaking order, before proceeding with the assessment in respect of the above said five assessment years.” 32. 32.Since then, the practice has been in vogue. The mechanism evolved is only a safeguard, a protection from harassment of the assessee, for avoiding unwarranted harassment, from undesirable adjudicatory process, so initiated, perhaps on jurisdictional error or such material which ex-facie may be false or reason(s) which prima facie appears to be baseless or without any cause or justification. The object being, affording an opportunity to an assessee of putting across its case, by placing authentic and undisputed material, satisfying no escapement of income from assessment, enabling the authority to consider, and if so required, drop the proceedings. There can be a fact situation where out of malice or for extraneous reasons, an Assessing Officer may decide the objections, in a palpably illegal manner. What if it is against the mandate of the said decision itself? In any event, orders passed by a Statutory authority are always amenable for challenge in a writ Court which power, perhaps the Court may exercise, when warranted, in the attending facts and circumstances. NON COOPERATIVE ATTITUDE 33.Non cooperative attitude and conduct of the petitioner is vehemently pressed as a primary ground for rejection of the petition. Specific attention is drawn to the affidavit filed in response to the petition: (a) petitioner failed to furnish information during the entire period of 8½ months. (b) Save and except for filing of photocopies of few bank accounts; unverified and unauthenticated statement of account of the loaner and the order of reassessment so passed qua him, no information privy only to the petitioner, stands furnished. (c) No response to a detailed questionnaire dated 23.5.2016 is furnished. (d) Endeavour of the revenue in having a centralized investigation and assessment of the loaner and the loanee, has, yet not, yielded any result, for such order came to be quashed by this Court and now the matter is pending before the Apex Court. (e) On the petitioner’s asking, proceedings of assessment relating to financial year 2009-10 and 2012-13 in relation to the HUF, a separate legal entity, also stand stayed by this Court. 34.Much emphasis is laid on the following observations made by the Apex Court in Sasi Enterprises (supra):- 34.Much emphasis is laid on the following observations made by the Apex Court in Sasi Enterprises (supra):- “17. We are, in these appeals, concerned with the question of non- filing of returns by the appellants for the assessment year 1991-92, 1992-93 and 1993-94. Each and every order passed by the revenue as well as by the Courts were taken up before the higher courts, either through appeals, revisions or writ petitions. The details of the various proceedings in respect of these appealsare given in paragraph 30 of the written submissions filed by the revenue, which revealsthe dilatory tactics adopted in these cases. Courts,we caution, be guarded against those persons who prefer to see it as a medium for stalling all legal processes. We do not propose to delve into those issues further since at this stage we are concerned with answering the questions which have been framed by us.” (Emphasis supplied) 35. In the given facts and circumstances, we are not inclined to dismiss the petition on such a ground. However, on this issue, we refrain from making any observation, save and except that petitioner is duty bound to fully cooperate in the expeditious adjudication of all proceedings. REASONS TO BELIEVE 36.The expression “reasons to believe” stands adequately elaborated by the Apex Court in its various pronouncements. The issue is no longer debatable. 37.By relying upon its earlier decision, rendered by a Constitution Bench (five-Judge) judgment, in Calcutta Discount Co. Ltd., v. Income-tax Officer, Companies District I, Calcutta and another, AIR 1961 SC 372, a Three-Judge Bench of the apex Court in S. Narayanappa and others v. Commissioner of Income-Tax, Bangalore, (1967) 63 ITR 219 : , held that: “if there are in fact some reasonable grounds-for the Incometax Officer to believe that there -had been any nondisclosure as regards anyfact, which could have a material bearing on -the question of underassessment that would be sufficient to give jurisdictionto the Income Tax Officer to issue the notice under S. 34. Whether these grounds are adequate or not is not a matter for the Court to investigate. In other words, the sufficiency of the grounds-which induced the Incometax Officer to act isnot a justiciable issue.It is of course open for the assessee to contend that the Income-tax Officer did not hold the belief that there had been such non-disclosure. In other words, the existence of the belief can be challengedby the assessee but not the sufficiency of thereasons for the belief. Again the expression "reason to believe" in S. 34 of the Income-tax Act does not mean a purely subjective satisfaction on the part of the Income-tax Officer. The belief must be held in good faith: it cannot be merely a pretence. To put it differently it is open to the Court to examine the question whether the reasons for the beliefhave a rational connection or a relevantbearing to the formation of the belief and are not extraneous or irrelevant to the purpose ofthe Section. To this limited extent, the action of the Income-tax Officer in starting proceedings under S. 34 of the Act is open to challenge in a Court of law”. (Emphasis supplied) 38.The position came to be reiterated by a two-Judge Bench of the apex Court in Lakhmani Mewal Das (supra), wherein the Court held that the grounds or reasons which lead to the formation of belief must have a material bearing on the question of escapement of income of the assessee from assessment because of his failure or omission to disclose fully and truly, all material facts. 39.Later on in Phool Chand (supra), it stood clarified that decision to quash the action in Lakhmani Mewal Das (supra), was based on its given fact situation, where information received by the Assessing Officer was wholly vague, indefinite, farfetched, remote and without any basis for holding a reasonable belief, warranting action, under Section 147 of the Act. It further observed that: (Emphasis supplied) 38.The position came to be reiterated by a two-Judge Bench of the apex Court in Lakhmani Mewal Das (supra), wherein the Court held that the grounds or reasons which lead to the formation of belief must have a material bearing on the question of escapement of income of the assessee from assessment because of his failure or omission to disclose fully and truly, all material facts. 39.Later on in Phool Chand (supra), it stood clarified that decision to quash the action in Lakhmani Mewal Das (supra), was based on its given fact situation, where information received by the Assessing Officer was wholly vague, indefinite, farfetched, remote and without any basis for holding a reasonable belief, warranting action, under Section 147 of the Act. It further observed that: “19……….Acquiring fresh information, specific in nature and reliable in character, relating to the concluded assessment which goes to expose the falsity of the statement made by the assessee at the time of original assessment is different from drawing a fresh inference from the same facts and material which was available with the I.-T.O. at the time of original assessment proceedings. The two situations are distinct and different. Thus, wherethe transaction itself on the basis of subsequentinformation is found to be a bogus transaction, the mere disclosure of that transaction at the time oforiginal assessment proceedings cannot be said to be a disclosure of the "true" and "full" facts in the case and the I.-T.O. would have the jurisdiction to reopen the concluded assessment in such a, case. It is correct that the assessing authority could have deferred the completion of the original assessment proceedings for further enquiry and investigation into the genuineness to the loan transaction but in our opinion his failure to do so and complete the original assessment proceedings would not take away his jurisdiction to act under S. 147 of the Act, on receipt of the information subsequently. The subsequent information on the basis of which the I.-T.O. acquired reasons to believe that income chargeable to tax had escaped assessment on account of the omission of the assessee to make a full and true disclosure of the primary facts was relevant, reliable and specific. It was not at all vague or non-specific.” … … … “26… …One of the purposes of S. 147, appears to us to be, to ensure that a party cannot get awayby wilfully making a false or untrue statement atthe time of original assessment and when thatfalsity comes to notice, to turn around and say "you accepted my lie, now your hands are tied and you can do nothing." It would be travesty of justice to allow the assessee that latitude.” (Emphasis supplied) 40.The Apex Court also had an occasion to deal with the amended provisions in Rajesh Jhaveri (supra). The Court found the scope and effect of section 147 to 148 as substituted with effect from April 1, 1989, to be substantially different from the earlier provisions. For conferment of jurisdiction under original section 147(a), two conditions required satisfaction (i) the Assessing Officer must have reason to believe that the income profits or gains chargeable to income tax have escaped assessment, and (ii) he must also have reason to believe that such escapement occurred by reason of either omission or failure on the part of the assessee to disclose fully or truly all material facts necessary for his assessment of that year. However, under the substituted section 147, only the first condition required satisfaction of reason to believe, that the income had escaped assessment. It further observed that:- “19. Section 147 authorises and permits the Assessing Officer to assess or reassess income chargeable to tax if he has reason to believe that “19. Section 147 authorises and permits the Assessing Officer to assess or reassess income chargeable to tax if he has reason to believe that income for any assessment year has escaped assessment. The word reason in the phrase reason to believe would mean cause or justification.If the Assessing Officer has cause or justification to know or suppose that income had escaped assessment, it can be said to have reason to believe that an income had escaped assessment.The expression cannot be read to mean that the Assessing Officer should have finally ascertained the fact by legal evidence or conclusion. The function of the Assessing Officer is to administer the statute with solicitude for the public exchequer with an inbuilt idea of fairness to taxpayers.” “20.………At that stage, the final outcome of the proceeding is not relevant. In other words, at the initiation stage, what is required is 'reason to believe', but not the established fact ofescapement of income. At the stage of issue of notice, the only question is whether there was relevant material on which a reasonable person could have formed a requisite belief. Whether the materials would conclusively prove the escapement is not the concern at that stage. This is so because the formation of belief by the Assessing Officer is within the realm of subjective satisfaction.” (Emphasis supplied) 41. 41.It is also the law that the Assessing Officer is not precluded to reopen assessment of an earlier year on the basis of his finding of fact, so made on the basis of fresh material, so discovered, in the course of assessment of next assessment year [Ess Ess Kay Engineering Co. (supra)]. 42.In Calcutta Discount Co. Ltd., v. Income-tax Officer, Companies District I, Calutta and another, AIR 1961 SC 372, the apex Court held that: (Emphasis supplied) 41. 41.It is also the law that the Assessing Officer is not precluded to reopen assessment of an earlier year on the basis of his finding of fact, so made on the basis of fresh material, so discovered, in the course of assessment of next assessment year [Ess Ess Kay Engineering Co. (supra)]. 42.In Calcutta Discount Co. Ltd., v. Income-tax Officer, Companies District I, Calutta and another, AIR 1961 SC 372, the apex Court held that: “9. There can be no doubt that the duty ofdisclosing all the primary facts relevant to the decision of the question before the assessing authority lies on the assessee. To meet a possible contention that when some account books orother evidence has been produced, there is no duty on the assessee to disclose further facts,which on due diligence, the Income-tax Officermight have discovered, the Legislature has put in the Explanation, which has been set out above. In view of the Explanation, it will not be open to the -"disclosing all the primary facts relevant to the decision of the question before the assessing authority lies on the assessee. To meet a possible contention that when some account books orother evidence has been produced, there is no duty on the assessee to disclose further facts,which on due diligence, the Income-tax Officermight have discovered, the Legislature has put in the Explanation, which has been set out above. In view of the Explanation, it will not be open to the -"assessee to say, for example I have produced the account books and the documents : You, the assessing officer examine them, and fi