M/S.british Agro Products (India) P.ltd(Rep. By Its Managing Director, Dr. Akilan Ramnathan) v. The Assistant Commissioner Of Income Tax National E-Faceless Assessment Centre, Delhi E-Ramp, Jawaharlal Nehru Stadium Delhi – 110 003

IN THE HIGH COURT OF JUDICATURE AT MADRAS CORAM THE HONOURABLE MR.JUSTICE R. MAHADEVANAND THE HONOURABLE MR.JUSTICE J.SATHYA NARAYANA PRASAD W.A. No.2894 of 2021and CMP.No.19494 of 2021 M/s.British Agro Products (India) P.Ltd(Rep. by its Managing Director, Dr. Akilan Ramnathan)No.9, State Bank Officers ColonyShastri Nagar, AdyarChennai – 600 020 ..Appellant/Petitioner Versus 1. The Assistant Commissioner of Income Tax National e-faceless Assessment Centre, Delhi E-Ramp, Jawaharlal Nehru Stadium Delhi – 110 003 2. The Income Tax Officer Corporate Ward -1 (3) Income Tax Department 121, Nungambakkam High Road Chennai – 600 034 3. The Principal Commissioner of Income Tax – 1 121, Nungambakkam High Road Chennai – 600 034 ..Respondents/Respondents Writ Appeal filed under Clause 15 of Letters Patent againstthe order dated 22.10.2021 passed by the learned single judgein W.P. No.22071 of 2021. Prayer in W.P. No.22071 of 2021: Writ Petition filed underSection 226 of the Constitution of India, to issue a Writ ofCertiorarified Mandamus to call for the records of the WritPetitioner Company on the file of the First Respondent to quashthe impugned order dated 23.09.2021 passed u/s 143(3) r.w.s 144Bof the Act for the Assessment year 2018-2019 in ITBA/AST/S/143(3)/2021-22/1035833472(1) and consequently direct the firstRespondent to complete the fresh assessment for the assessment https://hcservices.ecourts.gov.in/hcservices/ year 2018-19 after granting reasonable /sufficient opportunityof hearing. For Respondent: Mr. Prabhu Mukunth Arunkumar JUDGMENT(Judgment of the Court was delivered by R. MAHADEVAN, J.) Heard both sides and perused the documents placed beforethis court. 2.According to the appellant, they are one of the largestgrowers of white button mushrooms in the state of Tamil Nadu andhas a state-of-the-art growing facility and sells its ediblewhite button mushroom to various markets across Tamil Nadu. Forthe assessment year 2018-19, they filed its return of incomereporting the taxable income of Rs.72,19,470/- along with theclaim of Rs.11,44,54,027/- representing the agricultural incomederived from cultivation and sale of white button mushrooms,which was exempted from taxation under section 10(1) of theIncome Tax Act. Upon scrutiny of the same, they were issued witha show cause notice dated 28.09.2019 under section 143(2) of theAct, pursuant to which, the appellant filed its response on06.10.2019. Thereafter, they were served with a show causenotice-cum- draft assessment order dated 22.04.2021 proposing todetermine the total taxable income at Rs.28,05,99,730/- bygranting one day time to respond within 23.59 hours of23.04.2021, to which, the appellant filed its reply on23.04.2021. Subsequently, they were issued with a show causenotice-cum-modified draft assessment order dated 21.09.2021calling upon them to respond by 23.59 hours of 22.09.2021, inand by which, the course of assessment was changed byrestricting the turnover from sale of white button mushroom toRs.1,87,77,400/- out of the turnover reported in the books ofRs.41,22,05,594/- and proposing to treat the balance amount ofRs.39,40,28,194/- as income under section 69A as unexplainedmoney. The appellant filed its reply to the same on 22.09.2021.Ultimately, the first respondent passed the assessment order on23.09.2021 adopting the modified draft assessment order alongwith demand notice quantifying the tax payable by the appellantat Rs.43,82,99,580/-. Challenging the same, on the ground ofviolation of principles of natural justice, the appellant filedWP.No.22071 of 2021, which by order dated 22.10.2021, wasdismissed by the learned Judge, holding that there is anefficacious and alternative remedy of statutory appeal availableto them under section 246A of the Income Tax Act. Aggrieved over https://hcservices.ecourts.gov.in/hcservices/ https://hcservices.ecourts.gov.in/hcservices/ the said order passed in the writ petition, they have come upwith this writ appeal before this court. 3.On 26.11.2021, when the matter was taken up foradmission, this court directed the respondents to getinstructions and file counter, if any, and in the mean while,the interest of the appellant was protected. 4.Subsequently, the respondents have filed their counteraffidavit in CMP.No.19494 of 2021 in WA.No.2894 of 2021,wherein, it is inter alia stated that the present appeal is notmaintainable, inasmuch as the appellant has already filed anappeal under section 246A of the Income Tax Act, 1961, againstthe assessment order dated 23.6.2021 relating to the assessmentyear 2018-19; and that, they can file a petition before theassessing officer in accordance with section 220(6) of the Actto treat them as an assessee not in default. 5.Whereas, on the side of the appellant, a memo was filedand a request was made to this court to direct the learned CIT(A) to consider the grounds raised in the statutory appealpreferred by the assessee under section 246A of the Income TaxAct, 1961, along with the grounds relating to sales pattern,impossibility of providing the name, address, PAN and otheridentity of retail walk-in customers, overall expenses incurredincluding TDS, EB payments, etc., toll plaza passes for vehiclesfor daily carrying of white button mushrooms and contradictoryobservations of the assessing officer. That apart, it is prayedon the side of the appellant that the department may be directedto consider and refer their case to the High pitched AssessmentCommittee, as the assessee's case would fall within theinstructions stipulated in circular no.17/2015 dated 09/11/2015in F.No.225/290/2015-IT-II issued by the Ministry of Finance,Government of India. 6.It is thus, evident from the submissions made by theparties that the appellant has already filed the statutoryappeal in accordance with section 246A of the Act, which is aneffective and efficacious alternative remedy available to them.In such circumstances, they cannot be permitted to pursue thisappeal, as it is a settled law that simultaneously, thelitigants could not avail of two parallel remedies in respect ofthe same matter at the same time [Refer: Jai Singh v. Union ofIndia and others, 1977 AIR 898; Awadh Bihari Yadav and others v.State of Bihar and others, (1995) SCC (6) 31]. Though thelearned senior counsel appearing for the appellant placingreliance on the decision of the Supreme Court in Magadh Sugar &Energy Ltd v. State of Bihar [2021 SCC Online SC 801] submittedthat the existence of an alternate remedy does not by itself barthe High Court from exercising its jurisdiction in certain contingencies, the same cannot be countenanced by this court, asthe issues involved in that decision are purely on the legalprinciples, without reference to the factual scenario. 7.In such view of the matter, the writ appeal standsdismissed, leaving it open to the appellant to raise all thegrounds raised before this court to the appellate authority andpursue the appeal pending before him along with stayapplication, if any. It is made clear that this court has notexpressed any opinion on the merits of the case and it is forthe appellate authority to decide the appeal on merits and asper law, after providing due opportunity of being heard to theappellant. No costs. Consequently, connected miscellaneouspetition is closed. Sd/- Deputy Registrar(CS) //True Copy// Sub Assistant Registrar To 1. The Assistant Commissioner of Income Tax National e-faceless Assessment Centre, Delhi E-Ramp,Jawaharlal Nehru Stadium Delhi – 110 0032. The Income Tax Officer Corporate Ward -1 (3) Income Tax Department 121, Nungambakkam High Road Chennai – 600 0343. The Principal Commissioner of Income Tax – 1 121, Nungambakkam High Road Chennai – 600 034. Sd/- Deputy Registrar(CS) //True Copy// Sub Assistant Registrar To 1. The Assistant Commissioner of Income Tax National e-faceless Assessment Centre, Delhi E-Ramp,Jawaharlal Nehru Stadium Delhi – 110 0032. The Income Tax Officer Corporate Ward -1 (3) Income Tax Department 121, Nungambakkam High Road Chennai – 600 0343. The Principal Commissioner of Income Tax – 1 121, Nungambakkam High Road Chennai – 600 034. +1cc to Mr.M.Velmurugan, Advocate, S.R.No.8433 NK(CO)RGA(18/02/2022) W.A. No.2894 of 2021