Doosan Bobcat India Private Limited(Formerly Known As Doosan Infracore India Private Limited)Rep. By Its Chief Financial Officer, Mr.kibong Nam,3Rd Floor v. The Deputy Commissioner Of Income Tax, Corporate Circle-1(1)

IN THE HIGH COURT OF JUDICATURE AT MADRAS Reserved on 05.11.2019Delivered on 21.11.2019 THE HON'BLE Mr.JUSTICE K.RAVICHANDRABAABU Doosan Bobcat India Private Limited(Formerly known as Doosan Infracore India Private Limited)Rep. by its Chief Financial Officer, Mr.Kibong Nam,3rd Floor, No.67, TNPL Building,Mount Road, Guindy,Chennai 600 032....Petitioner vs 1.The Deputy Commissioner of Income Tax, Corporate Circle-1(1), 121, Mahatma Gandhi Road, Chennai 600 034. 2.The Assistant Commissioner of Income Tax (OSD) Corporate Range 1, 121, Mahatma Gandhi Road, Chennai 600 034. 3.The Principal Commissioner of Income Tax-1, 121, Mahatma Gandhi Road, Chennai 600 034. ...Respondents Prayer:Writ petition filed under Article 226 of the Constitutionof India for issuance of a writ of certiorari to call for therecords on the file of the second respondent and quash theimpugned order passed by the second respondent in PAN:AACCD6529Ldated 12.12.2017 along with notice in PAN: dated31.03.2017 in Letter No.ITBA/AST/S/148/2016-17/1003811296(1)issued under Section 148 of the Income Tax Act for theassessment year 2010-11. For petitioner : Mr.N.V.BalajiFor Respondents : Mrs.Hema Muralikrishnan Senior Standing Counsel O R D E RThis writ petition is filed challenging the assessmentorder dated 12.12.2017 passed under Section 143(3) read withSection 147 of the Income Tax Act, 1961 along with notice dated31.03.2017 issued under Section 148 of the Income Tax Act. For petitioner : Mr.N.V.BalajiFor Respondents : Mrs.Hema Muralikrishnan Senior Standing Counsel O R D E RThis writ petition is filed challenging the assessmentorder dated 12.12.2017 passed under Section 143(3) read withSection 147 of the Income Tax Act, 1961 along with notice dated31.03.2017 issued under Section 148 of the Income Tax Act. 2.The case of the petitioner is as follows: It is a Private Limited Company and an assessee beforethe respondent Department. The petitioner filed a return ofincome for the Assessment Year 2010-11 under Section 139(1) ofthe Income on 08.10.2010 declaring loss of Rs.17,30,25,913. Theoriginal return was filed within the due date. On the date offiling of the return, the petitioner did not get its accountaudited and had sought approval from the Registrar of Companiesfor extending the time limit to hold its Annual General Meeting.The petitioner was required to file an electronic return ofincome and such electronic return would get uploaded only whenall the mandatory fields are filled, one such being the detailsof audit under section 44AB of the said Act. Since thepetitioner was liable for audit under Section 44AB of the saidAct, the online return could not be uploaded without fillingdetails of the audit return. Therefore, the petitionermentioned the date of audit report as 29.09.2010, an adhoc dateto enable the online filing of the return. The accounts of thepetitioner were eventually audited under the Companies Act, 1956and subsequently under Section 44AB of the said Act on12.01.2011. Based on the tax audit report dated 12.01.2011, thepetitioner filed a revised return on 05.02.2011 declaring lossof Rs.10,93,69,356/-. The first respondent passed an orderunder Section 143(3) of the said Act dated 13.03.2014, acceptingthe loss declared in the revised return. During the course ofassessment proceedings, the petitioner provided all the materialinformation required for the purpose of assessment, includingthe tax audit report and Auditor's report under the CompaniesAct. The first respondent later issued the impugned noticeunder Section 148 of the said Act dated 31.03.2017. In responseto the said notice, the petitioner filed these return of incomeon 21.04.2017. They also sought for furnishing reasons forreopening through its letter dated 26.04.2017. The reasons werefurnished through proceedings dated 15.06.2017. The petitionerfiled their objections against the reopening on 02.08.2017. TheAssessing Officer rejected the objections by proceedings dated29.09.2017. Consequently, the Assessing Officer issued noticeunder Section 143(2) of the said Act dated 27.10.2017 forscrutiny for reassessment under Section 147 of the Act.Thereafter, the impugned reassessment order under Section 143(3)read with 147 of the Act was passed on 12.12.2017. Subsequentto the notice issued under Section 143(2), no furtheropportunity was provided or notice of hearing was issued to the petitioner. Hence, the impugned order of assessment violatesthe principles of natural justice. The reopening is made afterthe expiry of four years from the end of the assessment year2010-11. The notice under Section 148 is served after the endof the four years from the end of the assessment year 2010-11.Since the petitioner had truly and fully disclosed all materialfacts necessary for the purpose of assessment in the course oforiginal assessment, the limitation of four years as provided inthe first Proviso to Section 147 is attracted. The reasonsprovided by the first respondent for reopening have not beendrawn on the basis of any fresh material on record. Theassessing Officer merely claimed the return of income to beinvalid due to typographical error made by the petitioner. Thesecond respondent rejected the objections of the petitioneragainst reopening stating that the error with respect to thedate of audit report is not typographical error but amounted toassessee not furnishing truly and fully all the materials. Thereopening is one which is based on same materials that werepresent at the time of original assessment. Therefore, the sameamounts to change of opinion. Proceedings under Section 147 ofthe Act on the basis of opinion of the Revenue Audit partywithout individual application of mind by the Assessing Officer,is illegal and bad in law. 3. A counter affidavit is filed by the respondents,wherein it is stated as follows: This writ petition is not maintainable, since thestatutory appellate remedy is available to the petitioneragainst the impugned order. The impugned order was passed aftergiving due and sufficient opportunity to the petitioner.Principles of natural justice and the statutory provisions wereduly complied with. The question whether the addition made bythe respondent is justifiable or not, is an issue to be agitatedon merits after letting in evidence and does not hitjurisdiction of the respondents to maintain the writ petition asagainst the assessment order. The original return of income wasfiled by the petitioner herein on 08.10.2010 declaring a loss ofRs.17,30,25,913/-. In the affidavit itself, it is stated thatthe date of Audit Report under Section 44AB was mentioned as29.09.2010 and that such date was not the correct date but anadhoc date mentioned by the petitioner at its whims and fancies.It is necessary to note that Section 44AB audit report has to bemandatorily completed and prepared before the due date forfiling of return under Section 139(1), which for the presentyear is 15.10.2010. However, the petitioner herein has not gotthe 44AB audit report prepared by then. Further, even in therevised return of income dated 05.02.2011 , the petitioner hasmentioned the date of audit report as 29.09.2010, which again isa false statement. Also, it is to be noted that the 44B reportwas prepared on 12.01.2011, nearly 4 months after the last date for preparing the same and there is absolutely no plausiblereason given for such delay. The notice under Section 148 wasissued on 31.03.2017 after getting the necessary administrativeapproval from the higher authorities. The notice under Section148 had been issued within the due date as per Section 149. Theaverment that no opportunity was provided is not accepted, asafter the issue of 143(2) notice, there was no response from thepetitioner. No other details except those produced during thescrutiny proceedings, and details filed in response to Section148 notice, reply stating objections for the issue of noticeunder Section 148 were provided. Since this is a case ofreopening and order rejecting the objections of the assessee wasalso passed on 29.09.2017 meeting all averments and the issuebeing carry forward of loss requiring no further details, orderunder Section 143(3) read with Section 147 was made on12.12.2017 in accordance with the reasons provided to thepetitioner and also in conformity with the conditions foundsatisfied by the higher authorities. Hence, there had been noviolation of natural justice and fair play. The condition ofreopening after four years from the end of the Assessment Year2010-11 had been found satisfied and the notice under Section148 has been issued i.e. before the end of 6 years, on31.03.2017, which is well within the condition for reopening.It is wrong to say that all material facts necessary forassessment had been truly and fully disclosed, when the materialfact of date of audit report was a false disclosure in thereturn of income. In the petitioner's case, it is an issue ofwrong input in return of income by incorporating a bogus datefor completion of Audit Report under Section 44AB, which has noconnection with disclosure of materials. It is also submittedthat the issue to be considered is whether the representation inthe return about the Audit report is true or not. It issubmitted that from the averments of the petitioner, it is veryclear that the petitioner had wantonly mentioned a wrong date ofaudit report in its return of income. The averment that therewas a typographical error in the return of income cannot beaccepted as the concerned audit report had been prepared afterdelay of 4 months and even in the revised return, the date ofaudit report is wrongly mentioned as 29.09.2010 so that the CPCas well as the assessing Officer are led to believe that theaudit report had been completed and prepared within thestipulated time. The averment that "reopening based on samematerial made available at the time of scrutiny assessment isnot valid" is refuted herein and it is submitted that there hadbeen excessive allowance of loss which should not be carriedforward and the subject excessive allowance is covered by theproviso to Sec.147. The averment that information received fromthe audit part cannot be the basis for reassessment proceedingsis denied by the fact that there had been no mandatorycompliance of filing the audit report under Section 44AB within the due date. 4. A rejoinder affidavit is filed by the petitionerreiterating the contentions already raised. It is also statedtherein that there is no statutory bar on carrying forward theloss, when return is filed within time limit under Section 139(1) of the Act, even if the audit under Section 44AB was notcompleted within the due date. It is further stated that theissue whether reopening is permissible on the basis of auditobjection is a relevant issue in deciding the jurisdiction tomake reassessment under Section 147. Therefore, the writpetition is maintainable. 5. Mr.N.V.Balaji, learned counsel for the petitionersubmitted as follows: i) The impugned order of assessment is challenged mainlyon three grounds viz., a) Reopening is based on change of opinion; b) Reopening is barred by limitation; 5. Mr.N.V.Balaji, learned counsel for the petitionersubmitted as follows: i) The impugned order of assessment is challenged mainlyon three grounds viz., a) Reopening is based on change of opinion; b) Reopening is barred by limitation; c) Before passing the assessment order, the petitioner wasnot issued with notice under Section 142(1) and thus, theimpugned order was passed without providing reasonableopportunity. Though the Assessing Officer has issued noticeunder Section 143(2), he failed to issue notice under Section142(1). Since the return cannot be filed online without fillingup the date of the audit report, the petitioner has wronglygiven 29.09.2010, as the date of audit report, as an adhoc date.However, though the Audit Report was made on 12.01.2011 and whena revised return is filed on 05.02.2011, once again the date ofAudit Report was referred to as 29.09.2010. However providingwrong date of audit report cannot be a reason to reopen theassessment, when the petitioner has placed all the materialfacts and relevant documents before the Assessing Officer at thetime of original assessment. On 11.07.2012, the AssessingOfficer called for documents and the petitioner filed the AuditReport before the Assessing Officer on 27.08.2012. When anotice under Section 148 dated 31.03.2017 was issued, thepetitioner filed return in response to such notice, however,again by making the same mistake regarding the date of AuditReport, which is not intentional and on the other hand, by wayof inadvertence. The Assessing Officer sought to reopen theassessment by claiming that the petitioner had given falseinformation regarding Audit Report and that the Audit Reportfiled was belated one. The Assessing Officer also seeks toreopen the assessment for levying penalty, which cannot be aground for reopen. There is no allegation that there is failureon the part of the assessee to disclose truly and fully thematerial details. The petitioner filed their objections againstthe reasons for reopening, however, the same was not consideredproperly. Unless Section 139(9) is put into operation, no return can be declared invalid and on the other hand, it couldbe only a defective return. The Assessing Officer found thereturn filed by the petitioner as invalid only because wrongdate of Audit Report was given. There is no live link betweenthe reasons for reopening and the material relied for suchreasons. Even though an alternative remedy of appeal isavailable against the impugned assessment order, still the writpetition is maintainable, since the petitioner is questioningthe very reopening also. If the Assessing Officer assumesjurisdiction under Section 147 without satisfying the mandatoryrequirement, the Writ Court can go into it, instead of drivingthe petitioner to seek alternative remedy. In this connection,the decisions of the Hon'ble Supreme Court reported in (1961) 41ITR 191 (SC), Calcutta Discount Co. Ltd., vs. Income Tax Officerand 2017 (77) taxmann.com 176 (SC), Jeans Knit (P) Ltd., vsDeputy Commissioner of Income Tax, are relied on. ii) On merits, it is to be noted that a return of incomewill not become invalid by reason of mistake as contemplatedunder Section 292B. Mistake does not affect the materialinformation regarding the escapement of assessment. Giving awrong date of audit report is not a false claim and it is purelya mistake. Board Circular dispense with the production of auditreport with return. However, the Assessing Officer says it ismandatory under Section 139(9). iii)The following case laws are relied on in support ofthe above contention: a) (2018) 92 taxmann.com 361, (SC), Income Tax Officer vs. Techspan India (P) Ltd., b) 2002(256) ITR 1 (Del), Commissioner of Income Tax vs. Kelvinator of India Ltd., c) (2010) 320 ITR 561 (SC), Commissioner of Income ii) On merits, it is to be noted that a return of incomewill not become invalid by reason of mistake as contemplatedunder Section 292B. Mistake does not affect the materialinformation regarding the escapement of assessment. Giving awrong date of audit report is not a false claim and it is purelya mistake. Board Circular dispense with the production of auditreport with return. However, the Assessing Officer says it ismandatory under Section 139(9). iii)The following case laws are relied on in support ofthe above contention: a) (2018) 92 taxmann.com 361, (SC), Income Tax Officer vs. Techspan India (P) Ltd., b) 2002(256) ITR 1 (Del), Commissioner of Income Tax vs. Kelvinator of India Ltd., c) (2010) 320 ITR 561 (SC), Commissioner of Income Tax, Delhi vs. Kelvinator of India Ltd. d) (2003) 129 Taxmann.com 967(Mad), Director of Income Tax vs. Spic Educational Foundation; e) (1992) 40 ITD 300 (Bom), Income Tax Officer vs. Sabine Laboratories (P) Ltd., f) 2007 163 Taxmann 154 (Raj), Bajrang Oil Mills vs. Income Tax Officer. g) (2015) 378 ITR 380 (Mad), Commissioner of Income Tax vs. Schwing Stetter India (P) Ltd., h) (2017) 88 Taxmann 256 (Mad), Madras Suspensions Ltd., vs Deputy Commissioner of Income Tax; i) (2018) 97 Taxmann.com 179 (Mad), Principal Commissioner of Income Tax-6 vs. Santech Solutions (P.) Ltd. 6. Per contra, Mrs.Hema Muralikrishnan, learned SeniorStanding Counsel for the respondents submitted as follows: i) The writ petition itself is not maintainable, since asagainst the impugned assessment order, a statutory appellateremedy is available to the petitioner and therefore, withoutexhausting such remedy, the petitioner is not justified infiling the present writ petition. Challenge made in this writpetition is against 148 notice and the consequential order ofassessment. The petitioner has not questioned the orderrejecting the objections filed by the petitioner against thereasons for reopening. The case laws relied on by thepetitioner in support of the maintainability of the writpetition are factually distinguishable and thus, not applicableto the present case. The recent decision of the Apex Courtreported in 2018(3) SCC 85, State Bank of India vs. K.C.Mathew,is relied on against the maintainability. None of theingredients referred to in 2014(1)SCC 603, CIT vs. Chhabil DassAgarwal, is attracted to maintain the writ petition. ii) On merits, it is to be noted that the petitioner isblowing hot and cold. The petitioner gave a false statement, asif the audit report has been obtained. Therefore, it is evidentthat there is no true and full disclosure of material details atthe time of original assessment. Consequently, the reopening isjustified. Whether it is a bonafide mistake or not, is afactual aspect, which has to be pleaded and proved before thenext fact finding Authority, viz., the Appellate Authority. Ifthe assessee failed to bring to the notice of the AssessingOfficer the relevant fact, the assessment can be reopened. Inthis connection, the decision of this Court reported in 2018(99)Taxmann.com 340 (Mad), A.Sridevi vs. ITO, confirmed in 2018(100) taxmann.com 434 (Madras) (DB), A.Sridevi vs. ITO, isrelied on. iii) The other case laws are relied on by the learnedcounsel for the petitioner in support of his contention onmerits are also factually distinguishable and thus, they are notapplicable to the present case. Moreover, the facts andcircumstances of each case relied on by the learned counselwould show that they are either filed against the very 148notice immediately before ever the assessment order passed orafter going through the regular process of filing appeal beforethe concerned statutory appellate authorities. iii) The other case laws are relied on by the learnedcounsel for the petitioner in support of his contention onmerits are also factually distinguishable and thus, they are notapplicable to the present case. Moreover, the facts andcircumstances of each case relied on by the learned counselwould show that they are either filed against the very 148notice immediately before ever the assessment order passed orafter going through the regular process of filing appeal beforethe concerned statutory appellate authorities. 7. Heard the learned counsel for the petitioner and thelearned Senior Standing Counsel for the respondents. Perusedthe materials placed before this Court.8. Challenge made in this writ petition is against thenotice issued under Section 148 of the Income Tax Act, 1961 andthe consequential order of assessment passed under Section 143(3) read with Section 147 of the said Act dated 12.12.2017. Therelevant assessment year is 2010-2011. In respect of therelevant assessment year, original return was filed by the petitioner on 08.10.2010. In the said return, the assessee hadshown the date of audit report as 29.09.2010, while filing therelevant columns therein under the head Audit Information.Again, a revised return was filed by the assessee on 05.02.2011,wherein also, the date of audit report was specifically statedas 29.09.2010. The Assessing Officer, based on the return filedby the petitioner, completed the assessment and issued an orderof assessment on 13.03.2014, followed by a notice of demandunder Section 157 of the said Act dated 14.03.2014. After aperiod of three years, the Assessing Officer issued notice underSection 148 of the Income Tax Act, 1961, to reopen theassessment on the reason that the Assessee's income chargeableto tax for the relevant assessment year has escaped assessment.Accordingly, the Assessing Officer called upon the petitioner tofile a return in the prescribed form. In response to the saidnotice, the assessee filed return dated 21.04.2017. Even whilefiling the said return pursuant to notice under Section 148, thepetitioner referred the date of audit report as 29.09.2010. Thepetitioner through communication dated 26.04.2017, requested theAssessing Officer to provide with the reasons recorded forreopening the assessment. Consequently, the Assessing Officerthrough communication dated 15.06.2017, furnished the reasonsfor reopening the assessment, which reads as follows: " The assessee filed the return of income for theA.Y.2010-11 on 08/10/2010 declaring a loss orRs.10,93,69,356. Subsequently, the case was selectedfor scrutiny and assessment was completed on 13.03.2014accepting the same. It is seen that the assessee company had shownthe current year losses as below are carry forward tosubsequent year, in the income statement:Unabsorbed depreciation lossRs. 88,35,494Business LossRs.10,05,33,863------------------- Rs.10,93,69,356 It is seen from the annual accounts and Form 3CD, it isfound that the Annual accounts and audit certificateu/s 44AB were prepared and certified on 12 January2011. However, in the revised return filed by theassessee on 05/02/2011, it was stated that the auditcertificate u/s 44AB was signed on 29/09/2010. Fromthe above it is evident that the information given bythe assessee is false with regard to audit certificateu/s 44AB. Further, the annual accounts are certifiedonly on 12/01/2011. Hence, the return filed by theassessee on 08/10/2010 stating that loss ofRs.10,93,69,356/- is invalid one. Therefore, the carryforward of business loss is required to be disallowed. Further, failure to furnish report within due daterelating report u/s 44AB and 92E attract penalty u/s271B and 271BA. Both the reports were audited andcertified by the Chartered Accountants only after thedue date specified u/s 139(1) of IT Act. Hence penaltyu/s 271B and 271BA are to be levied. Further, failure to furnish report within due daterelating report u/s 44AB and 92E attract penalty u/s271B and 271BA. Both the reports were audited andcertified by the Chartered Accountants only after thedue date specified u/s 139(1) of IT Act. Hence penaltyu/s 271B and 271BA are to be levied. From the foregoing, it is seen that the material fact,has not been disclosed fully and truly during thecourse of assessment proceedings. Further, reliance isplaced on Explanation 1 of Section 147 which clarifiesthat, "Production before the Assessing Officer ofaccounts books or other evidence from which materialevidence could with due diligence have been discoveredby the Assessing Officer will not necessarily amount todisclosure within the meaning of foregoing proviso."Therefore, I have definite reason to believe thatincome to the tune of Rs.10,93,69,356- has escapedassessment." 9. Perusal of the above said reasons for reopening theassessment would show that it is the specific allegation of theRevenue that the return filed by the assessee with regard to thedate of audit report is with false information and that thereturn so filed is invalid one. It is also alleged that thepetitioner has not disclosed the material fact fully and trulyduring the course of assessment. The Assessing Officer soughtto rely upon Explanation (1) of Section 147 to contend that mereproduction of accounts, books or other evidence before theAssessing Officer will not necessarily amount to disclosurewithin the meaning of the relevant provision. 10. The Assessee through the communication dated01.08.2017, filed their objections against the reasons forreopening. It is their contention that there is no new materialavailable to reopen the assessment and that the mere change inopinion cannot justify reopening of the assessment. It is alsocontended by the assessee that non furnishing of auditedaccounts and audit report under Section 44AB does not render thereturn invalid. It is their further contention that the returnof income cannot be regarded as invalid in view of Section 292Bof the said Act. However, the assessee has admitted that thedate of audit report was inadvertently mentioned as 29.09.2010,as against the actual date viz., 12.01.2011. According to theassessee, it is purely a clerical error made without anymalafide and however, it does not make the total income or taxliability of the assessee. The Assessing Officer, afterconsidering the objections filed by the assessee againstreopening, passed a detailed order on 29.09.2017, rejected the objection and found that the reopening is valid. The AssessingOfficer, while rejecting the objections, observed that theassessee has furnished a false information regarding the date ofaudit report and therefore, the assessee cannot claim that theyhave truly and fully disclosed all the material facts necessaryfor the assessment. The Assessing Officer also pointed out thatthe assessee has failed to furnish the audit report within thedue date relating to report under Section 44AB and 92E, whichalso attracted penalty under Section 271B and 271 BA of the saidAct. The Assessing Officer further pointed out that the reasonsgiven for effecting reassessment were not the matters consideredby the Assessing Officer, while passing the assessment order andtherefore, when no opinion was formed in this regard earlier,the question of change of opinion does not arise. 11. The above said order dated 29.09.2017, rejecting theobjections against reopening was not put to challenge and on theother hand, the assessee, in response to the said order,participated in the assessment proceedings and allowed theAssessing Officer to complete the assessment and pass theimpugned order dated 12.12.2017. 11. The above said order dated 29.09.2017, rejecting theobjections against reopening was not put to challenge and on theother hand, the assessee, in response to the said order,participated in the assessment proceedings and allowed theAssessing Officer to complete the assessment and pass theimpugned order dated 12.12.2017. 12. Under the above stated facts and circumstances, thisCourt has to consider and decide as to whether the impugnedproceedings viz., the notice under Section 148 and theconsequential assessment order passed under Section 143(3) readwith Section 147 need to be interfered with by going into themerits of the matter, when admittedly the petitioner has notquestioned the order rejecting the objections filed by thepetitioner against reopening. 13. At this juncture, it is relevant to note theobservation made by the Apex Court reported in (2003) 259 ITR19, GKN Driveshaft's (India) Limited vs ITO. As per GKNDriveshaft's case, it is open to the assessee to seek forreasons for reopening and if such request is made, the AssessingOfficer is bound to furnish the reasons within a reasonabletime. It is further observed therein that on receipt of thereason, the assessee is entitled to file objections against thereasons and that the Assessing Officer is bound to dispose ofthe same by passing a speaking order. The very observation madeby the Apex Court that the Assessing Officer should pass aspeaking order on the objections raised against reopening wouldundoubtedly show that it is an order by itself in so far as theprocess of reopening is concerned, commencing from the issuanceof notice under Section 148 to passing an order either acceptingor rejecting the objections raised against the reopening.Depending upon the order passed by the Assessing Authorityagainst the objections raised on the reasons for reopening, itis open to the assessee to work out their remedy either to challenge the said order immediately before the AssessingOfficer goes to the next step of issuing notice under Section143(2), calling upon the assessee to participate in theassessment proceedings or to participate in the assessmentproceedings and allow the Assessing Officer to pass revisedorder of assessment. 14. In this case, admittedly, the petitioner has notquestioned the order dated 29.09.2017, rejecting the objections.It is pertinent to note at this juncture that even in this writpetition, the challenge made is against notice under Section 148and the order of assessment. In between, the order rejectingthe objection stares at the petitioner, which was notquestioned. No doubt, the petitioner, while questioning theorder of assessment, can also question the reopening. But theforum of such change is relevant to be noted at this juncture. 15. The petitioner has chosen to challenge the noticeunder Section 148 and the consequential assessment order byfiling the present writ petition. I have already pointed outthat the impugned assessment order is the consequence ofreopening the assessment under Section 147. Therefore, thequestion whether the reopening is valid or not, is to beconsidered and decided based on the reasons for reopening,objections filed by the assessee against such reasons and orderpassed thereon rejecting such objections. As already pointedout that the assessee has not chosen to challenge the rejectionorder, on the other hand, they participated in the assessmentproceedings. 15. The petitioner has chosen to challenge the noticeunder Section 148 and the consequential assessment order byfiling the present writ petition. I have already pointed outthat the impugned assessment order is the consequence ofreopening the assessment under Section 147. Therefore, thequestion whether the reopening is valid or not, is to beconsidered and decided based on the reasons for reopening,objections filed by the assessee against such reasons and orderpassed thereon rejecting such objections. As already pointedout that the assessee has not chosen to challenge the rejectionorder, on the other hand, they participated in the assessmentproceedings. 16. Therefore, in my considered view, the reasons forreopening and the consequential order rejecting the objectionsagainst those reasons now got merged with the subsequent orderof assessment and therefore, it would not be proper for thisCourt to go into the question of reopening alone and decideabout its validity by exercising the jurisdiction of this Courtunder Article 226 of the Constitution of India. By going intosuch question, if it is found that the reopening is valid, thisCourt has to necessarily go into the merits of the assessment aswell and find out as to whether the same can be sustained ornot. Needless to state that such exercise involvingconsideration of factual aspects of the matter, needs to be doneonly by the next fact finding authority viz., AppellateAuthority. It is well settled that in fiscal matters, invokingthe jurisdiction of this Court under Article 226 of theConstitution of India, straight away to challenge the order ofthe Original Authority and not be encouraged and on the otherhand, the parties must be directed to resort to the statutoryappellate remedy under the relevant statute. 17. At this juncture, the recent decision of the ApexCourt reported in (2018) 3 SCC 85, Authorized Officer, StateBank of Travancore vs. Mathew K.C., is relevant to be quoted,wherein at paragraph No.5, it is observed as follows: "5. We have considered the submissions on behalfof the parties. Normally this Court in exercise ofjurisdiction under Article 136 of the Constitution isloath to interfere with an interim order passed in apending proceeding before the High Court, except inspecial circumstances, to prevent manifest injustice orabuse of the process of the court. In the present case,the facts are not in dispute. The discretionaryjurisdiction under Article 226 is not absolute but hasto be exercised judiciously in the given facts of acase and in accordance with law. The normal rule isthat a writ petition under Article 226 of theConstitution ought not to be entertained if alternatestatutory remedies are available, except in casesfalling within the well defined exceptions as observedin Commissioner of Income Tax and Others vs. ChhabilDass Agarwal, 2014 (1) SCC 603, as follows: “15. Thus, while it can be said that this Courthas recognised some exceptions to the rule ofalternative remedy i.e. where the statutory authorityhas not acted in accordance with the provisions of theenactment in question, or in defiance of thefundamental principles of judicial procedure, or hasresorted to invoke the provisions which are repealed,or when an 5 order has been passed in total violationof the principles of natural justice, the propositionlaid down in Thansingh Nathmal case, Titaghur PaperMills case and other similar judgments that the HighCourt will not entertain a petition under Article 226of the Constitution if an effective alternative remedyis available to the aggrieved person or the statuteunder which the action complained of has been takenitself contains a mechanism for redressal of grievancestill holds the field. Therefore, when a statutoryforum is created by law for redressal of grievances, awrit petition should not be entertained ignoring thestatutory dispensation.” 18. As rightly pointed out by the learned Counsel for theRevenue that none of the exceptions referred to in the abovedecision is attracted in this case to exercise the discretionaryjurisdiction of this Court under Article 226 of the Constitutionof India to examine the correctness or otherwise of theimpugned order of assessment. The learned counsel for thepetitioner relied on (1961) 41 ITR 191 (SC), Calcutta Discount Co. Ltd. vs. Income Tax Officer and (2017) 77 taxmann.com 176(SC), Jeans Knit (P) Ltd. vs. Deputy Commissioner of Income Tax,in support of his submission on the maintainability of the writpetition. As rightly pointed out by the learned counsel for theRevenue, the facts and circumstances of both the cases wouldshow that challenge made in those cases before the Court wasagainst notice issued for reopening the assessment, even beforean order of assessment was passed. There is no doubt that thepetitioner is entitled to approach this Court and challenge thevery reopening proceedings, provided they approach the Courtwell before the Assessing Officer proceeded to the next stage ofpassing the order of assessment. In other words, if theassessee failed to challenge the reopening at the appropriatetime before the Court, he is not entitled to seek suchindulgence, after allowing the Officer to pass the order ofassessment and thereby, allowing the reopening proceedings toget merged with the order of assessment, since the Writ Courtcannot sit as an Appellate Authority and decide the merits ofthe assessment. It is not that this Court is powerless todecide the merits but the question is whether such power is needto be exercised, while invoking the discretionary jurisdictionunder Article 226 of the Constitution of India. My consideredview is that under the guise of questioning the reopening, anassessee should not be encouraged to challenge the order ofassessment straight away before this Court by filing a writpetition, when he miserably failed to challenge the reopening atthe appropriate time. In fact, I myself considered the issue ina case reported in (2018) 99 taxmann.com 340 (Mad), A.Sridevivs. ITO and found that providing certain materials earliercannot be equated with the disclosure of true and full materialfacts necessary for assessment, unless such material was alreadyplaced on record at the time of filing the original returnitself. The above said decision was confirmed by the DivisionBench of this Court reported in (2018) 100 taxmann.com 434(Mad), A.Sridevi vs. ITO. 19. The admitted fact remains that the assessee has quoteda wrong date viz., 29.09.2010 as the date of audit report notonly in the original return but also in the revised returnbefore reopening and also in the return filed in response to thenotice issued under Section 148. The assessee claims that it isan inadvertent mistake or clerical mistake. Assuming that it isa mistake, committing the same mistake again and again, primafacie, does not appear to this Court as inadvertent, when theassessee was fully aware of the fact that the date of auditreport is 12.01.2011 and not 29.09.2010, as claimed in thereturns filed as stated supra. In fact, while the originalreturn was filed on 08.10.2010, admittedly the audit was notcompleted and a report was not available before the assessee.However they have chosen to indicate the date of audit report as 29.09.2010, while filing the original return on 08.10.2010.Therefore, it is evident that the date of audit report furnishedin the original return is not a true information or disclosureof material facts and therefore, the reasons for reopening theassessment indicating that there is a failure on the part of theassessee to disclose truly and fully material facts, cannot bestated as a reason without any basis. At the same time, thequestion as to whether such mistake in furnishing the date ofaudit report will go to the root of the matter and affect theassessment proceedings is a different issue, which has to beconsidered and decided only by the next fact finding Authority. No doubt, the learned counsel for the petitioner contendedthat the wrong committed by the assessee must have live link tosay that income has escaped assessment. I have already pointedout that the above issue is not a simple issue on law and on theother hand, it is on facts. Therefore, whether the wrongcommitted by the assessee in referring to the date of auditreport will certainly have a live link to say that the incomehas escaped assessment or not, is to be considered by the nextfact finding authority, as this Court is not expressing any viewon the said issue raised by the petitioner, as it is fullyconvinced that this matter is to be agitated before theAppellate Authority not before this Court. Thus, I find thatall the issues raised by the petitioner in this writ petitionneed to be raised only before the next fact finding Authorityviz., Appellate Authority by filing a regular appeal, which inturn, shall consider the same and pass orders on merits and inaccordance with law. Since this Court has not gone into themerits of the contentions raised by the petitioner touching uponthe merits of the assessment and expressed any view on the same,the case laws relied on by the learned counsel for thepetitioner are not considered for the present, as this Court isrelegating the petitioner to avail the alternative remedy ofappeal. Even otherwise, it is seen that the case laws relied onby the learned counsel for the petitioner are factuallydistinguishable, more particularly, when some of the cases areagainst very 148 notice at the first instance and some of thecases, where the assessee therein had gone through the regularstatutory appellate remedy. Therefore, when this Court findsthat the petitioner has to avail such alternative appellateremedy and raise all the points, it is not necessary to dealwith facts and circumstances of each case laws relied on by thepetitioner for the present. 20. Accordingly, this writ petition is disposed of, bydirecting the petitioner to file regular appeal against theimpugned order of assessment before the concerned AppellateAuthority within a period of four weeks from the date of receiptof a copy of this order. It is open to the petitioner to raise all the contentions raised in this writ petition before theAppellate Authority in the said appeal. The Appellate Authorityshall consider such appeal on its own merits and pass orders inaccordance with law, including the challenge made by thepetitioner against the reopening. Any of the observations madein this writ petition shall not influence the mind of theAppellate Authority to decide the appeal on its own merits andin accordance with law. No costs. The connected miscellaneouspetitions are closed. Sd/- Assistant Registrar(CS VIII) //True Copy// Sub Assistant Registrar vriTo1.The Deputy Commissioner of Income Tax, Corporate Circle-1(1), 121, Mahatma Gandhi Road, Chennai 600 034.2.The Assistant Commissioner of Income Tax (OSD) Corporate Range 1, 121, Mahatma Gandhi Road, Chennai 600 034.3.The Principal Commissioner of Income Tax-1, 121, Mahatma Gandhi Road, Chennai 600 034.+1cc to Mr.N.V.Balaji , Advocate SR.No. 98148+1cc to M/s.Hema Murali krishnan, Advocate SR.No. 97034W.P.NO.539 OF 2018A.SK(17/12/2019)