Praveen Kumar v. The Income Tax Officer,Non-Corporate Ward-12(4)

IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED : 30.06.2021 CORAM THE HONOURABLE MR. JUSTICE S.M.SUBRAMANIAM W.P.No.1824 of 2018and W.M.P.No.2273 of 2018 Praveen Kumar..Petitioner Vs. The Income Tax Officer,Non-Corporate Ward-12(4),223, BSNL Towers, 16, Greams Road,Chennai 600 006...Respondent Prayer: Writ Petition filed under Article 226 of theConstitution of India, to issue a Writ of Certiorari, callingfor the records in proceedings PAN: /ASST.YEAR 2010-11contained in the impugned Assessment order dated 22.12.2017, onthe file of the respondent herein and to quash the same. For Petitioner : Mr.T.Vasudevan For Respondent : Ms.Hemamurali Krishnan (Senior Standing Counsel for IT) ORDER The writ on hand is filed challenging the assessment orderdated 22.12.2017, passed under Section 144, read with Section147 of the Income Tax Act, 1961 (for brevity 'the Act') to theassessment year 2010-11. 2.The petitioner contended that the notice issued underSection 148 of the Act, by the Deputy Commissioner of IncomeTax, Non-Corporate Circle-12 (1), Chennai -6, on a dead personitself is illegal and all further proceedings culminated in theimpugned assessment order dated 22.12.2017 is nothing but,nullity and void ab-initio. 3.The learned counsel appearing for the petitionerreiterated that the entire proceedings were concluded based onthe notice issued on a dead person and therefore, the assessmentorder itself is to be set aside. https://hcservices.ecourts.gov.in/hcservices/ 4.The learned Senior Standing Counsel, appearing on behalfof the respondent, objected the said contention by stating thatthose facts are to be adjudicated and the petitioner has filedthis Writ Petition challenging the assessment order withoutexhausting the appellate remedy, as contemplated under Section246 (A) of the Act. 5.This Court is of the considered opinion that the appellateauthority is the final fact finding authority. The facts indispute between the parties cannot be adjudicated in a writproceedings, under Article 226 of the Constitution of India,which is to be undertaken by the appellate authority withreference to the original records and documents. Thus,exhausting the appellate remedy is of paramount importance andwould be of greater assistance to the High Court to exercise thepower of judicial review, under Article 226 of the Constitutionof India. The High Court need not undermine the importance ofthe appellate remedy, as the statute contemplates such appellateremedy with a specific intention to redress the grievances ofthe assessees and such a benefit need not be denied to anassessee. Various principles for exhausting the appellate remedyand the circumstances under which the High Court may dispensewith the appellate remedy are considered by this Court in numberof Writ Petitions. 6.Preferring an appeal is the rule. Entertaining a WritPetition before exhausting the appellate remedy is an exception.Undoubtedly, writ proceedings may be entertained beforeexhausting the appellate remedy. However, it is to be ensuredthat there is an imminent threat or gross injustice warrantingurgent relief to be granted. Mere violation of principles ofnatural justice is insufficient to entertain a writ proceedingsunder Article 226 of the Constitution of India, as every WritPetition is filed based on one or the other ground stating thatthe principles of natural justice is violated or statutoryrequirements are not complied with or there is an illegality orotherwise. Thus, dispensing with an appellate remedy is to begranted cautiously in view of the fact that the very purpose andobject of legislation providing an appellate remedy cannot bediluted nor the benefit be denied to the aggrieved person toexhaust the same. The statutory appellate authorities are thefinal fact finding authorities. Thus, the finding to be made bysuch appellate authorities with reference to the documents andevidences are of paramount importance for the purpose ofexercise of judicial review by the High Court under Article 226of the Constitution of India. 7.The power of judicial review of the High Court underArticle 226 of the Constitution of India is to scrutinize theprocesses through which a decision is taken by the competent authority, by following the procedures as contemplated, but notthe decision itself. Therefore, the routine entertainment of aWrit Petition by dispensing with appellate remedy is notpreferable and such an exercise would cause injury to theinstitutional hierarchy and the importance attached to suchappellate institutions. The appellate institutions providedunder the statute, at no circumstances, be undermined by thehigher Courts. The appellate forums are the final fact findingauthorities and more so, possessing expertise in a particularfield. Thus, the finding of such appellate forums would be avaluable assistance, for the purpose of exercise of judicialreview by the High Court, under Article 226 of the Constitutionof India. The High Court cannot conduct a roving enquiry withreference to the facts and circumstances, based on the documentsand evidences. Based on the mere affidavits filed by thelitigants, the disputed facts cannot be concluded. Thus, theimportance of fact finding by the appellate forums is of morevalue for the purpose of providing complete justice to theparties approaching the Court of law. 8.The point of delay may be an acceptable ground for thepurpose of entertaining a Writ Petition. The practise of filingthe Writ Petition without exhausting the statutory remedies arein ascending mode and such Writ Petitions are filed with a viewto avoid pre-deposits to be made in statutory appeals and on theground that the appellate remedies are time consuming. 9.In view of the facts and circumstances, the petitioner isat liberty to approach the appellate authority, by preferring anappeal in a prescribed format, following the procedurescontemplated, within a period of four weeks from the date ofreceipt of a copy of this order. The appellate authority, in theevent of receiving any such appeal from the petitioner, shallentertain the same, condone the delay if any, and adjudicate theappeal on merits, in accordance with law and by affordingopportunity to the parties concerned, as expeditiously aspossible. 10.With this liberty, the Writ Petition stands disposed of.No costs. Consequently, connected Miscellaneous Petition isclosed. Sd/- Assistant Registrar(CS III) //True Copy// Sub Assistant Registrar gsa https://hcservices.ecourts.gov.in/hcservices/ To1.The Income Tax Officer, Non-corporate ward-12(4), 223,BSNL Towers, 16, Greames Road, Chennai-600 006. 2.The Deputy Commissioner of Income Tax, Non-corporate circle, circle-12(1), Chennai-6 10.With this liberty, the Writ Petition stands disposed of.No costs. Consequently, connected Miscellaneous Petition isclosed. Sd/- Assistant Registrar(CS III) //True Copy// Sub Assistant Registrar gsa https://hcservices.ecourts.gov.in/hcservices/ To1.The Income Tax Officer, Non-corporate ward-12(4), 223,BSNL Towers, 16, Greames Road, Chennai-600 006. 2.The Deputy Commissioner of Income Tax, Non-corporate circle, circle-12(1), Chennai-6 +1cc to M/s.Hema Muralikrishnan, Advocate SR.No. 30126 PMK(CO) B.VC(15.07.2021) W.P.No.1824 of 2018