Jaganmohan v. The Principal Commissioner Of Income Tax, Nungambakkam, Chennai-34

In the High Court of Judicature at MadrasDated : 21.9.2020 The Honourable Mr.Justice T.S.SIVAGNANAMandThe Honourable Mrs.Justice V.BHAVANI SUBBAROYAN Writ Appeal No.790 of 2020 & CMP.No.10344 of 2020 Jaganmohan...Appellant Vs 1.The Principal Commissioner of Income Tax, Nungambakkam, Chennai-34. 2.The Assistant Commissioner of Income Tax, Non Corporate Ward-3, Nungambakkam, Chennai-34. APPEAL under Clause 15 of the Letters Patent against theorder in W.P.No.3625 of 2019 dated 07.11.2019. Writ Petition praying to call for the records of the 3[rd]respondent made in the assessment order dated 14.02.2018 for AY2011-12 in so far as the Petitioner is concerned and to quashthe same. We have heard Mr.P.Ravi Shankar Rao, learned counsel for theappellant and Mr.Prabu Mukund Arunkumar, learned counselappearing on behalf of Mrs.Hema Muralikrishnan, learned SeniorStanding Counsel accepting notice for the respondents. https://hcservices.ecourts.gov.in/hcservices/ 2. This writ appeal, filed by the appellant – writpetitioner, is directed against the order dated 07.11.2019passed in W.P.No.3625 of 2019. 3. The said writ petition was filed by the appellantchallenging the order of assessment passed under Section 144read with Section 147 of the Income Tax Act (for short, the Act)for the assessment year 2011-12. 4. The appellant contended before the learned Single Judgethat the notice under Section 148 of the Act was not served onthe appellant and therefore, the entire proceedings werevitiated. 5. The Revenue resisted the said plea by contending that thenotice was dispatched to the appellant – writ petitioner on29.3.2018 from Teynampet Post Office through speed post and thatthe appellant could not contend that the notice under Section148 of the Act was not issued. The Revenue also produced theproof before the learned Single Judge in support of theircontention. 6. However, the learned Single Judge dismissed the said writpetition by observing that the appellant could not canvass themerits of assessment before a Writ Court without filing aregular appeal. Accordingly, without expressing any opinion onthe merits of the matter, the said writ petition was disposed ofby granting liberty to the appellant to file an appeal beforethe concerned Authority within a period of two weeks from thedate of receipt of a copy of the said order. It was also madeclear that on such filing of the appeal, the same should beconsidered on its own merits and in accordance with law withoutreference to the period of limitation. 7. Before us, the learned counsel for the appellant hasassailed the correctness of the assessment order reiterating thestand taken before the learned Single Judge that though theappellant had been repeatedly seeking to furnish a copy of thealleged acknowledgment card, the same was never furnished to theappellant and that none of the letters written by the appellantwas replied by the Assessing Officer. It is further submittedthat the appellant raised a query under the Right to InformationAct. However, the Department stated that the record was notavailable. It is also submitted that no credibility can beattached to the stand taken by the Department before the learnedSingle Judge. 8. Per contra, Mr.Prabu Mukund Arunkumar, learned counselappearing on behalf of Mrs.Hema Muralikrishnan, learned SeniorStanding Counsel accepting notice for the respondents submits https://hcservices.ecourts.gov.in/hcservices/ that the notice was served in accordance with the procedure laiddown under the Act, that a similar issue was considered by oneof us (TSSJ), while sitting singly, in the decision in the caseof Abab Offshore Ltd. Vs. DCIT, Corporate Circle I(1), Chennai[reported in (2017) 78 Taxmann.com 37 (Madras)] and that thelearned Single Judge was right in rejecting the relief sought inthe said writ petition. 8. Per contra, Mr.Prabu Mukund Arunkumar, learned counselappearing on behalf of Mrs.Hema Muralikrishnan, learned SeniorStanding Counsel accepting notice for the respondents submits https://hcservices.ecourts.gov.in/hcservices/ that the notice was served in accordance with the procedure laiddown under the Act, that a similar issue was considered by oneof us (TSSJ), while sitting singly, in the decision in the caseof Abab Offshore Ltd. Vs. DCIT, Corporate Circle I(1), Chennai[reported in (2017) 78 Taxmann.com 37 (Madras)] and that thelearned Single Judge was right in rejecting the relief sought inthe said writ petition. 9. After elaborately hearing the learned counsel for theparties, we are of the considered view that the learned SingleJudge was fully justified in dismissing the said writ petition,as the appellant has got an effective alternate remedy by way ofan appeal before the Commissioner of Income Tax (Appeals)concerned. The Income Tax Act, 1961, being a physical Statute,has provided for hierarchy of remedies under that and there isno justification for the assessee to bypass such an appellateremedy. The point canvassed before us as well as before thelearned Single Judge is not a pure question of law, but a purequestion of fact with the limits of law involved in it.Therefore, if the facts are in dispute, it is but appropriatefor the appellant – assessee to avail the alternate remedyprovided under the Act, as the Appellate Authority is entitledto re-appreciate the facts, call for records and then take adecision. 10. The Income Tax Act, 1961 also provides for a furtherremedy to the aggrieved party by way of an appeal before theIncome Tax Appellate Tribunal and another remedy by way of anappeal before a Division Bench of this Court under Section 260Aof the Act if a substantial question of law is to be decided inthe matter. On going through the facts as set out in the saidwrit petition, we find that there is no ground for the appellantto bypass the appellate remedy. Though the learned counselappearing on behalf of the respondent – Revenue has referred tothe decision rendered by one of us (TSSJ), while sitting singly,in the case of Abab Offshore Ltd., we refrain from expressinganything on the merits of the matter, as we are inclined toconfirm the order passed by the learned Single Judge, who haddismissed the said writ petition at the threshold on account ofavailability of an alternate remedy. 11. For all the above reasons, the writ appeal is dismissed,the order dated 07.11.2019 passed in the said writ petition isconfirmed and the appellant is directed to file the appealbefore the concerned Commissioner of Income Tax (Appeals) withina period of 30 days from the date of receipt of a copy of thisjudgment and if the same is done, the concerned Commissioner ofIncome Tax (Appeals) is requested to entertain the appealwithout reference to the question of limitation and take a decision on merits and in accordance with law. No costs.Consequently, the connected CMP is also dismissed. //True Copy// Sd/-Assistant Registrar RS Sub Assistant Registrar To 1.The Principal Commissioner of Income Tax, Nungambakkam, Chennai-34.2.The Assistant Commissioner of Income Tax, Non Corporate Ward-3, Nungambakkam, Chennai-34.3.The Income Tax Officer, Non Corporate Ward-3, Nungambakkam, Chennai-34. Copy ToThe Commissioner of Income Tax Appeals,Rajaji Bhavan, Besant Nagar, Chennai 90.+1cc to Mr.Hemamuralikrishnan, Advocate, S.R.No. 30926W.A.No.790 of 2020 &CMP.No.10344 of 2020 MG(CO)GN(15/10/2020)