Shri Krishnadas Paul v. Income Tax Officer, Ward-2, Imphal

[1] SHOUGRAKPAM Digitally signed by SHOUGRAKPAM DEVANANDA DEVANANDA SINGH Date: 2024.07.18 15:58:23 SINGH+05'30'IN THE HIGHCOURT OF MANIPUR AT IMPHAL WP(C) No. 626 of 2007 1. Smt. Mema Paul, aged about 65 years, W/o (L) Brajabihari Paul, Keishamthong Top Leirak , P.O. & P.S. , Imphal, Imphal West District, Manipur (expired)Paul, Keishamthong Top Leirak , P.O. & P.S. , Imphal, Imphal West District, Manipur (expired) By her Legal Representatives 2. Sujata Paul, aged about 55 years, D/o late Brajabihari Paul of Keishamthong Top Leirak, P.O. & P.S. Imphal, Imphal West District, Manipur-795001. Keishamthong Top Leirak, P.O. & P.S. Imphal, Imphal West District, Manipur-795001. 3. Shri Krishnadas Paul, aged about 52 years, S/o late Brajabihari Paul of keishamthong Top Leirak, P.O. & P.S. Imphal, Imphal West District, Manipur-795001. Paul of keishamthong Top Leirak, P.O. & P.S. Imphal, Imphal West District, Manipur-795001. ... Petitioners -Versus- 1. Income Tax Officer, Ward-2, Imphal. 2. Commissioner of Income Tax, NER, Shillong, Meghalaya. 3. Union of India through the Secretary (Finance/ Taxation), Government of India, New DelhiGovernment of India, New Delhi … Respondents B E FO RE HON’BLE MR. JUSTICE AHANTHEMBIMOL SINGH JUDGMENT & ORDER [1]Heard Mr. H.S. Paonam learned senior counsel assisted by Mr Sushruta Yumnan, learned counsel appearing for the petitioners and Mr. Kh. Samarjit, learned DSGI assisted by Mr. Armananda, learned counsel appearing for the respondents. [2] The writ petition has been filed with the prayer for quashing and setting aside the order dated 28-12-2006 passed by the Assessing Officer, i.e., Income Tax Officer, Ward-2, Imphal and the consequential order passed in penalty proceeding as illegal being violative of the provisions of section 153(1)(2) of the Income Tax Act, 1961. [3] The facts of the present case are not in dispute. The original petitioner was an assessee under the Income Tax Act, 1961 ("the Act",for short) and for the Assessment Year, 2003-2004, the said petitioner filed Return of her income on 04-06-2004 disclosing the total income of Rs. 1,00,240/-. The Return filed by the said petitioner was processed under section 143(1) of the Act on 14-12-2004 and thereafter, intimation was issued on the same date. After about one year from the date of filing the aforesaid Return, the Income Tax Officer, Ward-2, Imphal (hereinafter referred to as "the Assessing Officer", for short), by holding that he had reasons to believe that the income chargeable to tax had escaped assessment within the meaning of section 147 of the Act, issued notice under section 148 of the Act dated 28-07-2005 to the original petitioner requiring her to submit a Return of her income in the prescribed form within 30 days from the date of service of the said notice. There is nothing on record to indicate as to when the said notice was received by the original petitioner, however, it has been submitted on behalf of the petitioner that the said notice under section 148 was received on 06-12-2005 and the respondents have not denied such contention. the said notice under section 148 was received on 06-12-2005 and the respondents have not denied such contention. [4] On receiving the said notice, the original petitioner through her counsel submitted an application dated 06-12-2005 to the Assessing Officer with the request to make available information/ documents collected from different sources for taking up proceedings of escaped income so as to enable her to furnish details of the same for early settlement of the issue. As there was non-compliance to the notice issued under section 148 of the Act dated 28-07-2005, the Assessing Officer again issued another notice dated 03-03-2006 under section 148 of the Act requiring the original petitioner to submit her income for the said financial year in the prescribed form within 30 days from the date of receipt of the said notice. On receiving the said notice, the petitioner again wrote a letter to the Assessing Officer requesting to furnish the reason and under what circumstances she had been escaping taxable income so as to enable her to furnish the necessary reply. As there was again non-compliance by the original petitioner to the notice dated 03-03-2006, the Assessing Officer wrote a letter dated 12-04-2006 intimating to the petitioner that an opportunity was being given to her to file the Return within 15 days from the date of receipt of the said letter and that failure to comply will follow ex-parte assessment under section 144 without further information. [5] When the petitioner again failed to submit her Return and instead requested to make available or intimate the reasons and materials for reassessment of her income, the Assessing Officer wrote another letter dated 19-05-2006 requiring the original petitioner to show cause as to why her case should not be completed ex-parte under section 144 of the said Act and also requested her to attend the office on 02-06-2006 at 12:00 noon. The original petitioner was further informed that failure on her part to do so will compel the authorities to complete her case ex-parte without any further communication and penalty provisions under section 271(1) will be attracted. Thereafter, the original petitioner filed her Return on 19-06-2006 in response to the notice issued under section 148 of the Act, disclosing the same total income. In view thereof, the Assessing Officer dropped the proceeding under section 144 of the Act and issued notice to the petitioner under section 142(1) and 143(2) of the Act, both dated 22-06-2006. By another letter, dated 22-06-2006, the Assessing Officer informed the petitioner the reasons for initiation of proceeding under section 147 of the Act by stating that the original petitioner did not disclosed her rental income fully including arrear in her Return for Assessment Year, 2003-2004. [6] When the original petitioner (hereinafter referred to as "the Assessee") complied with all the subsequent notices, the case was discussed with the authorised representative of the Assessee, who appeared before the Assessing Officer from time to time and thereafter, on completion of the reassessment proceeding, the Assessing Officer passed the assessment order dated 28-12-2006 under section 143(3)/ 147 of the Act. By the said order, the Assessing Officer assessed the total income of the assessee at Rs. 3,17,508/- and raised a demand of Rs. 1,07,969/-. Following the same, notice of demand dated 28-12-2006 under section 156 of the Act was issued by the Assessing Officer raising a demand of Rs. 1,07,969/- for the said assessment year and copies of the said assessment order/ demand notice and challan were served on the authorized representative of the assessee on 05-01-2007. of Rs. 1,07,969/- for the said assessment year and copies of the said assessment order/ demand notice and challan were served on the authorized representative of the assessee on 05-01-2007. [7] In terms of the direction contained in the assessment order dated 28-12-2006, the Assessing Officer issued a Show Cause notice dated 25-05-2007 asking the assessee to show cause as to why penalty proceeding should not be initiated against her and also asking her to appear in the Office of the Assessing Officer. When the assessee failed to respond to the said show cause notice, the Assessing Officer passed the order dated 29-06-2007 imposing a penalty of Rs. 1,03,340/- on the assessee and the consequential notice of demand was issued and served to her. Having been aggrieved, the assessee filed the present writ petition for redressing her grievances. [8] Mr. H S. Paonam, learned senior counsel appearing for the petitioners raised only one ground in challenging the assessment order dated 28-12-2006 passed by the Assessing Officer as well as the subsequent order dated 29-06-2007 passed in the penalty proceeding. It has been submitted by the learned senior counsel that the proceeding of the reassessment and passing of the impugned assessment order dated 28-12-2006 as well as communication of the order was not completed within the period prescribed under section 153(2) of the Act and as such, the impugned assessment order and the consequential order passed in the penalty proceeding are illegal being violative of the provisions of section 153(2) of the Act and accordingly, liable to be quash and set aside. Elaborating the point, it has been submitted by the learned senior counsel that under section 153(2) of the Act, it is, inter alia, provided that no order of assessment, reassessment or recomputation shall be made under section 147 after the expiry of one year from the end of the financial year in which the notice under section 148 was served and that under the second proviso to section 153(2) of the Act, it is provided that where the notice under section 148 was served on or after the 1[st]day of April, 2005 but before the 1[st] day of April, 2011, the provisions of this sub-section shall have effect as if for the words " one year", the words "nine months" had been substituted. For ready reference, the provisions of section 153(2) of the Act are reproduced hereunder:- “Time limit for completion of assessments and reassessments 153. *** (2) No order of assessment, reassessment or recomputation shall be made under section 147 after the expiry of one year from the end of the financial year in which the notice under section 148 was served: [Provided that where the notice under section 148 was served on or after the 1[st] day of April, 1999 but before the 1[st]day of April, 2000, such assessment, reassessment or recomputation may be made at any time up to the 31[st] day of March, 2002] [Provided further that where the notice under section 148 was served on or after the 1[st] day of April, 2005 but before the 1[st] day of April, 2011, the provisions of this sub-section shall have effect as if for the words “one year”, the words “nine months” had been substituted]” [9] It has further been submitted by the learned senior counsel that the first notice under section 148 dated 28-07-2005 was served to the assessee on 06-12-2005 and the second notice under section 148 dated 03-03-2006 was served on the assessee in the month of March, 2006 and as such, the period of nine months shall start from 01-04-2006 and will end [Provided further that where the notice under section 148 was served on or after the 1[st] day of April, 2005 but before the 1[st] day of April, 2011, the provisions of this sub-section shall have effect as if for the words “one year”, the words “nine months” had been substituted]” [9] It has further been submitted by the learned senior counsel that the first notice under section 148 dated 28-07-2005 was served to the assessee on 06-12-2005 and the second notice under section 148 dated 03-03-2006 was served on the assessee in the month of March, 2006 and as such, the period of nine months shall start from 01-04-2006 and will end on 31-12-2006 as per the second proviso to section 153(2) of the Act. It has been strenuously submitted that the impugned assessment order dated 28-12-2006 is a back dated one and a copy of the same was served to the authorised representative of the assessee only on 05-01-2007, beyond the prescribed period of nine months. The learned senior counsel submitted that the impugned assessment order will take effect only from 05-01-2007, on which date it was served to the representative of the assessee and not from 28-12-2006, on which date it was allegedly passed. The learned senior counsel, accordingly, submitted that since the impugned assessment order shall deem to take effect only from 05-01-2007, beyond the period of limitation prescribed under the second proviso to section 153(2) of the Act., the whole proceeding of the reassessment as well as the impugned order are rendered illegal being violative of the provisions of section 153(2) of the Act and are liable to be quashed and set aside. In support of his contentions, the learned senior counsel cited the following case laws:- (1) “Bachhittar Singh Vs. State of Punjab & anr.” reported in AIR 1963 SC 395, wherein it has been held as under:- 1963 SC 395, wherein it has been held as under:- “10. The business of State is a complicated one and has necessarily to be "conducted through the agency of a large number of officials and authorities. The Constitution, therefore, requires and so did the Rules of Business framed by the Rajpramukh of PEPSU provide, that the action must be taken by the authority concerned in the name of the Rajpramukh. It is not till this formality is observed that the action can be regarded as that of the State or here, by the Rajpramukh. We may further observe that, constitutionally speaking, the Minister is no more than an adviser and that the head of the State, the Governor or Rajpramukh, is to act with the aid and advice of his Council of Ministers. Therefore, until such advice is accepted by the Governor whatever the Minister or the Council of Ministers may say in regard to a particular matter does not become the action of the State until the advice of the Council of Ministers is accepted or deemed to be be "conducted through the agency of a large number of officials and authorities. The Constitution, therefore, requires and so did the Rules of Business framed by the Rajpramukh of PEPSU provide, that the action must be taken by the authority concerned in the name of the Rajpramukh. It is not till this formality is observed that the action can be regarded as that of the State or here, by the Rajpramukh. We may further observe that, constitutionally speaking, the Minister is no more than an adviser and that the head of the State, the Governor or Rajpramukh, is to act with the aid and advice of his Council of Ministers. Therefore, until such advice is accepted by the Governor whatever the Minister or the Council of Ministers may say in regard to a particular matter does not become the action of the State until the advice of the Council of Ministers is accepted or deemed to be accepted by the Head of the State. Indeed, it is possible that after expressing one opinion about a particular matter at a particular stage a Minister or the Council of Ministers may express quite a different opinion, one which may be completely opposed to the earlier opinion. Which of them can be regarded as the “order” of the State Government? Therefore, to make the opinion amount to a decision of the Government it must be communicated to the person concerned. In this connection we may quote the following from the judgment of this Court in the State of Punjab v. Sodhi Sukhdev Singh: “Mr Gopal Singh attempted to argue that before the final order was passed the Council of Ministers had decided to accept the respondent's representation and to reinstate him, and that, according to him, the respondent seeks to prove by calling the two original orders. We are unable to understand this argument. Even if the Council of Ministers had provisionally decided to reinstate the respondent that would not prevent the Council from reconsidering the matter and coming to a contrary conclusion later on, until a final decision is reached by them and is communicated to the Rajpramukh in the form of advice and acted upon by him by issuing an order in that behalf to the respondent.” Thus it is of the essence that the order has to be communicated to the person who would be affected by that order before the State and that person can be bound by that order. For, until the order is communicated to the person affected by it, it would be open to the Council of Ministers to consider the matter over and over again and, therefore, till its communication the order cannot be regarded as anything more than provisional in character.” (2)“State of Punjab Vs. Amar Singh Harika” reported in AIR 1966 SC 1313, wherein it has been held as under:- Thus it is of the essence that the order has to be communicated to the person who would be affected by that order before the State and that person can be bound by that order. For, until the order is communicated to the person affected by it, it would be open to the Council of Ministers to consider the matter over and over again and, therefore, till its communication the order cannot be regarded as anything more than provisional in character.” (2)“State of Punjab Vs. Amar Singh Harika” reported in AIR 1966 SC 1313, wherein it has been held as under:- “11. The first question which has been raised before us by Mr. Bishan Narain is that though the respondent came to know about the order of his dismissal for the first time on the 28th May 1951, the said order must be deemed to have taken effect as from the 3rd June 1949 when it was actually passed. The High Court has rejected this contention; but Mr. Bishan Narain contends that the view taken by the High Court is erroneous in law. We are not impressed by Mr. Bishan Narain's argument. It is plain that the mere passing of an order of dismissal would not be effective unless it is published and communicated to the officer concerned. If the appointing authority passed an order of dismissal, but does not communicate it to the officer concerned, theoretically it is possible that unlike in the case of a judicial order pronounced in Court, the authority may change its mind and decide to modify its order. It may be that in some cases, the authority may fell that the ends of justice would be met by demoting the officer concerned rather than dismissing him. An order of dismissal passed by the appropriate authority and kept with itself, cannot be said to take effect unless the Bishan Narain is that though the respondent came to know about the order of his dismissal for the first time on the 28th May 1951, the said order must be deemed to have taken effect as from the 3rd June 1949 when it was actually passed. The High Court has rejected this contention; but Mr. Bishan Narain contends that the view taken by the High Court is erroneous in law. We are not impressed by Mr. Bishan Narain's argument. It is plain that the mere passing of an order of dismissal would not be effective unless it is published and communicated to the officer concerned. If the appointing authority passed an order of dismissal, but does not communicate it to the officer concerned, theoretically it is possible that unlike in the case of a judicial order pronounced in Court, the authority may change its mind and decide to modify its order. It may be that in some cases, the authority may fell that the ends of justice would be met by demoting the officer concerned rather than dismissing him. An order of dismissal passed by the appropriate authority and kept with itself, cannot be said to take effect unless the officer concerned knows about the said order and it is otherwise communicated to all the parties concerned. If it is held that the mere passing of the order of dismissal has the effect of terminating the services of the officer concerned, various complications may arise. If before receiving the order of dismissal, the officer has exercised his power and jurisdiction to take decisions or do acts within his authority and power, would those acts and decisions be rendered invalid after it is known that an order of dismissal had already been passed against him? Would the officer concerned be entitled to his salary for the period between the date when the order was passed and the date when it was communicated to him? These and other complications would inevitably arise if it is held that the order of dismissal takes effect as soon as it is passed, though it may be communicated to the officer concerned several days thereafter. It is true that in the present case, the respondent had been suspended during the material period; but that does not change the position that if the officer concerned is not suspended during the period of enquiry, complications of the kind already indicated would definitely arise. We are therefore, reluctant to hold that an order of dismissal passed by an appropriate authority and kept on its file without communicating it to the officer concerned or otherwise publishing it will take effect as from the date on which the order is actually written out by the said authority; such an order can only be effective after it is communicated to the officer concerned or is otherwise published. When a public officer is removed from service, his successor would have to take charge of the said office; and except in cases where the officer concerned has already been suspended, difficulties would arise if it is held that an officer who is actually working and holding charge of his office, can be said to be effectively removed from his office by the mere passing of an order by the appropriate authority. In our opinion, therefore, the High Court was plainly right in holding that the order of dismissal passed against the respondent on the 3rd June 1949 could not be said to have taken effect until the respondent came to know about it on the 28th May 1951.” (3) “Bipromasz Bipron Trading SA Vs. Bharat Electronics Limited (BEL)” reported in (2012) 6 SCC 384, wherein it has been held as under:- “31. Apart from the aforesaid statutory provision, it is also settled that an official order takes effect only when it is served on the person affected. In Bachhittar Singh v. State of Punjab this Court has clearly enunciated the principle of law in the following words: (AIR p. 398, para 10) that an official order takes effect only when it is served on the person affected. In Bachhittar Singh v. State of Punjab this Court has clearly enunciated the principle of law in the following words: (AIR p. 398, para 10) “10. … Thus it is of the essence that the order has to be communicated to the person who would be affected by that order before the State and that person can be bound by that communicated to the person who would be affected by that order before the State and that person can be bound by that order. For, until the order is communicated to the person affected by it, it would be open to the Council of Ministers to consider the matter over and over again and, therefore, till its communication the order cannot be regarded as anything more than provisional in character.” Similarly, in this case until the order was communicated to the petitioner, the Chairman-cum-Managing Director would have been at liberty to reconsider the matter and thus rendering the order only provisional in character.” “32. A similar question arose before this Court in BSNL v. Subash Chandra Kanchan wherein it has been clearly observed as under: (SCC p. 283, para 12) Chandra Kanchan wherein it has been clearly observed as under: (SCC p. 283, para 12) order. For, until the order is communicated to the person affected by it, it would be open to the Council of Ministers to consider the matter over and over again and, therefore, till its communication the order cannot be regarded as anything more than provisional in character.” Similarly, in this case until the order was communicated to the petitioner, the Chairman-cum-Managing Director would have been at liberty to reconsider the matter and thus rendering the order only provisional in character.” “32. A similar question arose before this Court in BSNL v. Subash Chandra Kanchan wherein it has been clearly observed as under: (SCC p. 283, para 12) Chandra Kanchan wherein it has been clearly observed as under: (SCC p. 283, para 12) “12. Evidently, the Managing Director of the appellant was served with a notice on 7-1-2002. The letter appointing the arbitrator was communicated to the respondent on 7-2-2002. By that time, 30 days' period contemplated under the Act lapsed. The Managing Director of the appellant was required to communicate his decision in terms of Clause 25 of the contract.” served with a notice on 7-1-2002. The letter appointing the arbitrator was communicated to the respondent on 7-2-2002. By that time, 30 days' period contemplated under the Act lapsed. The Managing Director of the appellant was required to communicate his decision in terms of Clause 25 of the contract.” In reaching the aforesaid conclusion, this Court relied on the earlier judgment rendered in State of Punjab v. Amar Singh Harika wherein this Court has held as follows: (AIR p. 1316, para 11) “11. The first question which has been raised before us by Mr Bishan Narain is that though the respondent came to know about the order of his dismissal for the first time on 28-5-1951, the said order must be deemed to have taken effect as from 3-6-1949 when it was actually passed. The High Court has rejected this contention; but Mr Bishan Narain contends that the view taken by the High Court is erroneous in law. We are not impressed by Mr Bishan Narain's argument. It is plain that the mere passing of an order of dismissal would not be effective unless it is published and communicated to the officer concerned. If the appointing authority passed an order of dismissal, but does not communicate it to the officer concerned, theoretically it is possible that unlike in the case of a judicial order pronounced in court, the authority may change its mind and decide to modify its order.” Mr Bishan Narain is that though the respondent came to know about the order of his dismissal for the first time on 28-5-1951, the said order must be deemed to have taken effect as from 3-6-1949 when it was actually passed. The High Court has rejected this contention; but Mr Bishan Narain contends that the view taken by the High Court is erroneous in law. We are not impressed by Mr Bishan Narain's argument. It is plain that the mere passing of an order of dismissal would not be effective unless it is published and communicated to the officer concerned. If the appointing authority passed an order of dismissal, but does not communicate it to the officer concerned, theoretically it is possible that unlike in the case of a judicial order pronounced in court, the authority may change its mind and decide to modify its order.” “33. The aforesaid observations make it clear that an order passed by an authority cannot be said to take effect unless the same is communicated to the party affected. The order passed by a competent authority or by an appropriate authority and kept with itself, could be changed, modified, cancelled and thus denuding such an order of the characteristics of a final order. Such an uncommunicated order can neither create any rights in favour of a party, nor take away the rights of any affected party, till it is communicated.” by an authority cannot be said to take effect unless the same is communicated to the party affected. The order passed by a competent authority or by an appropriate authority and kept with itself, could be changed, modified, cancelled and thus denuding such an order of the characteristics of a final order. Such an uncommunicated order can neither create any rights in favour of a party, nor take away the rights of any affected party, till it is communicated.” “34. The aforesaid proposition has been reiterated in Laxminarayan R. Bhattad v. State of Maharashtra, wherein it has been held that: (SCC p. 431, para 52) R. Bhattad v. State of Maharashtra, wherein it has been held that: (SCC p. 431, para 52) “52. … It is now well known that a right created under an order of a statutory authority must be communicated so as to confer an enforceable right.” of a statutory authority must be communicated so as to confer an enforceable right.” Similar view has been reiterated in Greater Mohali Area Development Authority v. Manju Jain wherein it is observed as follows: (SCC p. 164, para 24) “24. Thus, in view of the above, it can be held that if an order is passed but not communicated to the party concerned, it does not create any legal right which can be enforced through the court of law, as it does not become effective till it is communicated.” order is passed but not communicated to the party concerned, it does not create any legal right which can be enforced through the court of law, as it does not become effective till it is communicated.” (4) “Cochin Plantations Ltd. Vs. State of Kerala” reported in (1997) 227 ITR 38 (KER), wherein it has been held as under:- (1997) 227 ITR 38 (KER), wherein it has been held as under:- “4. From the averments contained in the petition filed by the assessee under section 19 it is seen that the managing director of the petitioner-assessee-company was unwell and he was admitted in Medical College Hospital for treatment during the relevant period. These were the circumstance under which, according to the assessee, it could not comply with the directions contained in the earlier notice in time. But it is a fact that the assessee had filed its returns on November 5, 1976, i.e., about a month before the assessment order was served on it. Taking into consideration all the facts and circumstances of the case, we are of the view that the assessee had made out a case under section 19, which would justify an order in its favour. Apart from the above, as mentioned earlier, the assessee had filed its returns much before the assessment order was served on it. This court had occasion to consider the validity of such assessment order in a series of decisions. It has been uniformly held that the assessment order becomes effective only when it is issued from the office of the assessing authority. In T.R.C. No. 6 of 1981, a Division Bench of this court has taken the view that assessment will not be over until the assessment is communicated to the assessee. The assessment order becomes operative only on service on the party intended to be affected thereby. In Govt. Wood Workshop v. State of Kerala [1987] 1 KLT 804, another Division Bench had occasion to consider a similar question and following the view taken by a Bench of this court in T.R.C.S. Nos. 15 and 16 of 1981, it was held that the order of any authority cannot be said to be passed unless it is in some way pronounced or published or the party affected has the means of knowing it. It is not enough if the order is made, signed, and kept in the file, because such order may be liable to change at the hands of the authority who may modify it, or even destroy it, before it is made known, based on subsequent information, thinking or change of assessee under section 19 it is seen that the managing director of the petitioner-assessee-company was unwell and he was admitted in Medical College Hospital for treatment during the relevant period. These were the circumstance under which, according to the assessee, it could not comply with the directions contained in the earlier notice in time. But it is a fact that the assessee had filed its returns on November 5, 1976, i.e., about a month before the assessment order was served on it. Taking into consideration all the facts and circumstances of the case, we are of the view that the assessee had made out a case under section 19, which would justify an order in its favour. Apart from the above, as mentioned earlier, the assessee had filed its returns much before the assessment order was served on it. This court had occasion to consider the validity of such assessment order in a series of decisions. It has been uniformly held that the assessment order becomes effective only when it is issued from the office of the assessing authority. In T.R.C. No. 6 of 1981, a Division Bench of this court has taken the view that assessment will not be over until the assessment is communicated to the assessee. The assessment order becomes operative only on service on the party intended to be affected thereby. In Govt. Wood Workshop v. State of Kerala [1987] 1 KLT 804, another Division Bench had occasion to consider a similar question and following the view taken by a Bench of this court in T.R.C.S. Nos. 15 and 16 of 1981, it was held that the order of any authority cannot be said to be passed unless it is in some way pronounced or published or the party affected has the means of knowing it. It is not enough if the order is made, signed, and kept in the file, because such order may be liable to change at the hands of the authority who may modify it, or even destroy it, before it is made known, based on subsequent information, thinking or change of opinion. To make the order complete and effective, it should be issued, so as to be beyond the control of the authority concerned, for any possible change or modification therein. By applying the above principle it has to be taken that before the assessment order has become effective by issuing the same by the office of the assessing authority, the assessee has filed its returns. Taking into consideration all these aspects, we are of the view that the application filed under section 19 by the assessee is to be allowed and fresh opportunity should be given to the assessee on the basis of the returns filed by it on November 5, 1976.” [10] Mr. Kh. Samarjit, learned DSGI appearing for the respondents submitted that there is provision for filing a statutory appeal under section 246 of the Income Tax Act, 1961, however, without availing such an opportunity of filing a statutory appeal, the assessee approached this court directly by filing the present writ petition for redressing her grievances. It has been submitted that since there is an alternative and effective remedy of filing an appeal, the present writ petition is not maintainable and liable to be rejected outright. The learned DSGI further submitted that there is no requirement under law for communicating the impugned assessment order within the prescribed period of limitation stipulated under section 153(2) of the Act. In support of his contentions, the learned DSGI cited the judgment rendered by the Hon'ble Apex Court in the case of "South Indian Bank Limited & ors. Vs. Naveen Mathew Philip & anr.” reported in 2023 SCC Online SCC 435, wherein it has been held as under:- “17. We shall reiterate the position of law regarding the interference of the High Courts in matters pertaining to the SARFAESI Act by quoting a few of the earlier decisions of this Court wherein the said practice has been deprecated while requesting the High Courts not to entertain such cases. High Courts in matters pertaining to the SARFAESI Act by quoting a few of the earlier decisions of this Court wherein the said practice has been deprecated while requesting the High Courts not to entertain such cases. Federal Bank Ltd. v. Sagar Thomas, (2003) 10 SCC 733, “18. From the decisions referred to above, the position that emerges is that a writ petition under Article 226 of the Constitution of India may be maintainable against (i) the State (Government); (ii) an authority; (iii) a statutory body; (iv) an instrumentality or is that a writ petition under Article 226 of the Constitution of India may be maintainable against (i) the State (Government); (ii) an authority; (iii) a statutory body; (iv) an instrumentality or agency of the State; (v) a company which is financed and owned by the State; (vi) a private body run substantially on State funding; (vii) a private body discharging public duty or positive obligation of public nature; and (viii) a person or a body under liability to discharge any function under any statute, to compel it to perform such a statutory function.” xxx xxx xxx agency of the State; (v) a company which is financed and owned by the State; (vi) a private body run substantially on State funding; (vii) a private body discharging public duty or positive obligation of public nature; and (viii) a person or a body under liability to discharge any function under any statute, to compel it to perform such a statutory function.” xxx xxx xxx “26. A company registered under the Companies Act for the purposes of carrying on any trade or business is a private enterprise to earn livelihood and to make profits out of such activities. Banking is also a kind of profession and a commercial activity, the primary motive behind it can well be said to earn returns and profits. Since time immemorial, such activities have been carried on by individuals generally. It is a private affair of the company though the case of nationalized banks stands on a different footing. There may well be companies, in which majority of the share capital may be contributed out of the State funds and in that view of the matter there may be more participation or dominant participation of the State in managing the affairs of the company. But in the present case we are concerned with a banking company which has its own resources to raise its funds without any contribution or shareholding by the State. It has its own Board of Directors elected by its shareholders. It works like any other private company in the banking business having no monopoly status at all. Any company carrying on banking business with a capital of five lakhs will become a scheduled bank. All the same, banking activity as a whole carried on by various banks undoubtedly has an impact and effect on the economy of the country in general. Money of the shareholders and the depositors is with such companies, carrying on banking activity. The banks finance the borrowers on any given rate of interest at a particular time. They advance loans as against securities. Therefore, it is obviously necessary to have regulatory check over such activities in the interest of the company itself, the shareholders, the depositors as well as to maintain the proper financial equilibrium of the national economy. The banking companies have not been set up for the purposes of building the economy of the State; on the other hand such private companies have been voluntarily established for their own purposes and interest but their activities are kept under check so that their activities may not go wayward and harm the economy in general. A private banking company with all freedom that it has, has to act in a manner that it may not be in conflict with or against the fiscal policies of the State and for such purposes, guidelines are provided by Reserve Bank so that a proper fiscal discipline, to conduct its affairs in carrying on its business, is maintained. So as to ensure adherence to such fiscal discipline, if need be, at times even the management of the company can be taken over. Nonetheless, as observed earlier, these are all regulatory measures to keep a check and provide guidelines and not a participatory dominance or control over the affairs of the company. For other companies in general carrying on other business activities, maybe manufacturing, other industries or any business, such checks are provided under the provisions of the Companies Act, as indicated earlier. There also, the main consideration is that the company itself may not sink because of its own mismanagement or the interest of the shareholders or people generally may not be jeopardized for that reason. Besides taking care of such interest as indicated above, there is no other interest of the State, to control the affairs and management of the private companies. Care is taken in regard to the industries covered under the Industries (Development and Regulation) Act, 1951 that their production, which is important for the economy, may not go down, yet the business activity is carried on by such companies or corporations which only remains a private activity of the entrepreneurs/companies.” ”27. Such private companies would normally not be amenable to the writ jurisdiction under Article 226 of the Constitution. But in certain circumstances a writ may issue to such private bodies or persons as there may be statutes which need to be complied with by all concerned including the private companies. For example, there are certain legislations like the Industrial Disputes Act, the Minimum Wages Act, the Factories Act or for maintaining proper environment, say the Air (Prevention and Control of Pollution) Act, 1981 or the Water (Prevention and Control of Pollution) Act, 1974 etc. or statutes of the like nature which fasten certain duties and responsibilities statutorily upon such private bodies which they are bound to comply with. If they violate such a statutory provision a writ would certainly be issued for compliance with those provisions. For instance, if a private employer dispenses with the service of its employee in violation of the provisions contained under the Industrial Disputes Act, in innumerable cases the High Court interfered and has issued the writ to the private bodies and the companies in that regard. But the difficulty in issuing a writ may arise where there may not be any non-compliance with or violation of any statutory provision by the private body. In that event a writ may not be issued at all. Other remedies, as may be available, may have to be resorted to.” writ jurisdiction under Article 226 of the Constitution. But in certain circumstances a writ may issue to such private bodies or persons as there may be statutes which need to be complied with by all concerned including the private companies. For example, there are certain legislations like the Industrial Disputes Act, the Minimum Wages Act, the Factories Act or for maintaining proper environment, say the Air (Prevention and Control of Pollution) Act, 1981 or the Water (Prevention and Control of Pollution) Act, 1974 etc. or statutes of the like nature which fasten certain duties and responsibilities statutorily upon such private bodies which they are bound to comply with. If they violate such a statutory provision a writ would certainly be issued for compliance with those provisions. For instance, if a private employer dispenses with the service of its employee in violation of the provisions contained under the Industrial Disputes Act, in innumerable cases the High Court interfered and has issued the writ to the private bodies and the companies in that regard. But the difficulty in issuing a writ may arise where there may not be any non-compliance with or violation of any statutory provision by the private body. In that event a writ may not be issued at all. Other remedies, as may be available, may have to be resorted to.” • United Bank of India v. Satyawati Tondon, (2010) 8 SCC 110, • United Bank of India v. Satyawati Tondon, (2010) 8 SCC 110, “42. There is another reason why the impugned order should be set aside. If Respondent 1 had any tangible grievance against the notice issued under Section 13(4) or action taken under Section 14, then she could have availed remedy by filing an application under Section 17(1). The expression “any person” used in Section 17(1) is of wide import. It takes within its fold, not only the borrower but also the guarantor or any other person who may be affected by the action taken under Section 13(4) or Section 14. Both, the Tribunal and the Appellate Tribunal are empowered to pass interim orders under Sections 17 and 18 and are required to decide the matters within a fixed time schedule. It is thus evident that the remedies available to an aggrieved person under the SARFAESI Act are both expeditious and effective.” aside. If Respondent 1 had any tangible grievance against the notice issued under Section 13(4) or action taken under Section 14, then she could have availed remedy by filing an application under Section 17(1). The expression “any person” used in Section 17(1) is of wide import. It takes within its fold, not only the borrower but also the guarantor or any other person who may be affected by the action taken under Section 13(4) or Section 14. Both, the Tribunal and the Appellate Tribunal are empowered to pass interim orders under Sections 17 and 18 and are required to decide the matters within a fixed time schedule. It is thus evident that the remedies available to an aggrieved person under the SARFAESI Act are both expeditious and effective.” “43. Unfortunately, the High Court overlooked the settled law that the High Court will ordinarily not entertain a petition under Article 226 of the Constitution if an effective remedy is available to the aggrieved person and that this rule applies with greater rigour in matters involving recovery of taxes, cess, fees, other types of public money and the dues of banks and other financial institutions. In our view, while dealing with the petitions involving challenge to the action taken for recovery of the public dues, etc. the High Court must keep in mind that the legislations enacted by Parliament and State Legislatures for recovery of such dues are a code unto themselves inasmuch as they not only contain comprehensive procedure for recovery of the dues but also envisage constitution of quasi-judicial bodies for redressal of the grievance of any aggrieved person. Therefore, in all such cases, the High Court must insist that before availing remedy under Article 226 of the Constitution, a person must exhaust the remedies available under the relevant statute.” High Court will ordinarily not entertain a petition under Article 226 of the Constitution if an effective remedy is available to the aggrieved person and that this rule applies with greater rigour in matters involving recovery of taxes, cess, fees, other types of public money and the dues of banks and other financial institutions. In our view, while dealing with the petitions involving challenge to the action taken for recovery of the public dues, etc. the High Court must keep in mind that the legislations enacted by Parliament and State Legislatures for recovery of such dues are a code unto themselves inasmuch as they not only contain comprehensive procedure for recovery of the dues but also envisage constitution of quasi-judicial bodies for redressal of the grievance of any aggrieved person. Theref