Ganga Sharan Tambi v. National Faceless Assessment Center, Income Tax Department,Ministry Of Finance, Room

HIGH COURT OF JUDICATURE FOR RAJASTHAN BENCH AT JAIPUR D. B. Civil Writ Petition No. 3462/2022 Ganga Sharan Tambi S/o Shri Ram Kishore Tambi, Aged About79 Years, R/o B-51, Nehru Nagar, Jaipur-302021, Rajasthan,India. ----Petitioner Versus National Faceless Assessment Center, Income Tax Department,Ministry Of Finance, Room No. 401, 2Nd Floor, E-Ramp,Jawaharlal Nehru Stadium, Delhi-110003 ----Respondent For Petitioner(s) : Mr. Mahendra Gargieya, Advocate with Mr. Devang Gargieya, Advocate HON'BLE MR. JUSTICE MANINDRA MOHAN SHRIVASTAVA HON'BLE MR. JUSTICE ANOOP KUMAR DHAND 03/03/2022 Judgment / Order By this petition an order of assessment dated 17.12.2020 isunder challenge. Even though there exists alternative remedy ofstatutory appeal available to the petitioner, learned counsel for thepetitioner would vehemently urge this Court to exercise discretionto entertain and decide the matter on various issues raised in thispetition by submitting that present is a case where opportunity ofhearing was not afforded to the petitioner, therefore, in view ofconsistent legal position that where there is violation of principlesof natural justice, alternative remedy would not be a barappropriate orders may be passed. Learned counsel for thepetitioner would submit that in the present case while passingorder of assessment, notification dated 29.09.2020 which had extended the period in view of COVID-19 situation, has also notbeen kept in view and the assessment authority hastily passed theorder. It is next submitted that the petitioner is a senior citizen, itwas a COVID-19 time and taking into consideration the scope ofunprecedented situation, the authorities, Courts and Tribunalswere liberally granting time to various parties for filingproceedings, appeals and applications but later assessingauthority acted hurriedly and without granting adequate time toreply to the show cause notice, proceeded to pass an ex-parteorder to utter prejudice directing addition of a huge amount ofRs.63,48,994/- by assessing total income at Rs.69,33,700/-. We have given outer consideration to the submission madeby learned counsel for the petitioner. It needs no authority for settled legal position that thediscretionary jurisdiction of this Court under Article 226 of theConstitution of India, which is extra-ordinary in nature could beexercised notwithstanding existence of alternative remedy.However, self imposed restraints, judicially recognized, includesome exceptional grounds when this Court would entertain thematter on merits and examine the legality of the action even ifthere is an alternative remedy which include absence ofjurisdiction, violation of principles of natural justice, malice or suchother grounds which require examination and decision of the writCourt. Violation of fundamental rights have always been viewed asone of the ground for the writ Courts to entertain the casesdespite existence of alternative remedy. Present is a case arising out of an order of assessment.Undeniably a notice was given to the petitioner on 31.10.2020, wherein, he was required to file reply to the show cause notice on16.11.2020. Therefore, present is not a case where the allegationis of complete absence of opportunity of hearing. Rather thegrievance is that proper opportunity of hearing was not afforded.Issue of jurisdiction as such is not under challenge on the groundthat the authority, which has passed the order, did not have thejurisdiction under the law to pass the order of assessment. There are many grounds which have been raised in thispetition which include the legality and validity of the assessmentproceedings with reference to certain statutory schemes. One additional ground has been raised in this petition that wherein, he was required to file reply to the show cause notice on16.11.2020. Therefore, present is not a case where the allegationis of complete absence of opportunity of hearing. Rather thegrievance is that proper opportunity of hearing was not afforded.Issue of jurisdiction as such is not under challenge on the groundthat the authority, which has passed the order, did not have thejurisdiction under the law to pass the order of assessment. There are many grounds which have been raised in thispetition which include the legality and validity of the assessmentproceedings with reference to certain statutory schemes. One additional ground has been raised in this petition that the order also suffers from malice in law as the authority hasacted in a manner, which was not at all warranted in the casesituation. As far as allegation of order being infected with malice inlaw, this again is an issue for consideration which would dependupon as to whether the time granted to the petitioner for filing thereply in the circumstances was adequate or not. It being not acase of allegation of malice, in fact, against the assessingauthority, we would not be inclined to interfere with the order onthat ground. Learned counsel for the petitioner has relied upon an orderdated 23.02.2022 passed in Anil Tambi Vs. The National E-Assessment Centre (D.B. Civil Writ Petition No. 2390/2022)wherein, this Court has entertained the petition on the groundthat effective opportunity of hearing was not granted. We have gone through that order and find that in peculiarcircumstances that department conveyed the date and time ofhearing on 10.06.2021 at 3.14 p.m., which was later onrescheduled to 2.54 p.m. on 05.08.2021, coupled with the allegation that there was a connectivity problem, this Court on thefacts of that case appears to have prima facie inclined to entertainthe petition. Be that as it may, in the absence of it being a case ofviolation of any fundamental right as such and that the grievanceis that adequate opportunity of hearing was not afforded and timefor filing reply to show cause notice was not extended and furthertaking into consideration that the order under challenge itself waspassed on 17.12.2020, in our considered opinion, the petitionershould approach the statutory appellate authority raising all thegrounds which have been raised in this petition including suchother grounds as may be available to him under the law.Considering that the petitioner appears to be a senior citizen, wedirect the appellate authority that in case the appeal is filed withina period of two months from today, the appellate authority shallexamine all the grounds and decide the appeal within an outerlimit of not more than two months from the date of presentationof the appeal. Writ petition is accordingly disposed off. (ANOOP KUMAR DHAND),J(MANINDRA MOHAN SHRIVASTAVA),JMohita /1