Shri R.srinivasan v. The Income Tax Officernon-Corporate Ward 3(1)

IN THE HIGH COURT OF JUDICATURE AT MADRAS CORAM THE HONOURABLE MR.JUSTICE S.M.SUBRAMANIAM W.P.Nos.2142 & 2143 of 2017 Shri R.Srinivasan ...Petitioner in both W.Ps Vs The Income Tax OfficerNon-Corporate Ward 3(1)No.63, Race Course Road,Coimbatore. ... Respondent in both W.Ps Prayer in W.P.No.2142 of 2017: Writ Petition filed Under Article 226 of the Constitution of India to issue of Writ ofCertiorarified Mandamus, calling for the records of therespondent in Assessment Order dated 09.12.2016 bearingPAN:CEFPS0550C for AY 2009-10 passed by the respondent asagainst this petitioner and quash the same and direct therespondent to drop all further proceedings. Prayer in W.P.No.2143 of 2017: Writ Petition filed Under Article226 of the Constitution of India to issue of Writ ofCertiorarified Mandamus, calling for the records of therespondent in Assessment Order dated 09.12.2016 bearingPAN:CEFPS0550C for AY 2012-13 passed by the respondent asagainst this petitioner and quash the same and direct therespondent to drop all further proceedings. COMMON ORDERThe writs on hand are filed, questioning the validity of theassessment order dated 09.12.2016 for the Assessment Years 2009-10 and 2012-13. https://hcservices.ecourts.gov.in/hcservices/ 2. The learned counsel appearing on behalf of the writpetitioner mainly contended that there cannot be any impositionof tax twice in respect of the same transactions. OneMr.D.Ramagopal, who is the nephew of the petitioner, has paidthe tax as applicable in respect of the particular transactionand therefore, the very assessment orders passed by therespondent are without jurisdiction and therefore, the orders ofassessment are to be quashed. 3. The writ petitioner earlier filed W.P.Nos.43982 and 43983of 2016, questioning the validity of the reopening of assessmentunder Section 147/148 of the Act. This Court passed a commonorder on 22.12.2016 and the relevant paragraph 5 reads as under:“5. Mr.Chopda, who appears for the Revenue saysthat the petitioner's assessments for the years 2009-10and 2012-13 have been re-opened on a protective basis,to avert a difficult situation, which could arise, ifat some stage, Shri.D.Ramgopal were to take the standthat the subject income/capital gains should beassessed in the hands of the petitioner. In otherwords, learned counsel says that protective assessmentin the hands of the petitioner is made, so that, theRevenue is not left without a remedy. Mr.Chopta saysthat clearly, there will be no tax liability vis-a-vis,the petitioner, in case, such a stand is not taken byShri.D.Ramgopal.” 4. Relying on the said judgment, the learned counsel for thepetitioner reiterated that even the order passed by this Courtthat the reopening was done on a protective basis and therefore,the penalty imposed is not traceable under the provisions of theIncome Tax Act. The said Mr.D.Ramagopal, also challenged theactions of the respondent on the same line and his appeal is nowpending before the Commissioner of Income Tax(Appeals). Thepetitioner has questioned the reopening of assessment as well asthe assessment orders now passed. 5. The various grounds raised in the writ petitions deservean elaborate adjudication on merits and in accordance with lawbased on the documents and evidences to be scrutinized. Such anadjudication cannot be done by the High Court in a writproceedings under Article 226 of the Constitution of India.There are two way of raising jurisdictional point in recent daysby the litigants. The jurisdictional point is mostly raised now-a-days. Relying on certain facts and circumstances, which allare culled out from the documents and evidences. Thejurisdictional point culled out in that manner cannot beentertained by the High Court under Article 226 of theConstitution of India. For every error, mistake, non- 5. The various grounds raised in the writ petitions deservean elaborate adjudication on merits and in accordance with lawbased on the documents and evidences to be scrutinized. Such anadjudication cannot be done by the High Court in a writproceedings under Article 226 of the Constitution of India.There are two way of raising jurisdictional point in recent daysby the litigants. The jurisdictional point is mostly raised now-a-days. Relying on certain facts and circumstances, which allare culled out from the documents and evidences. Thejurisdictional point culled out in that manner cannot beentertained by the High Court under Article 226 of theConstitution of India. For every error, mistake, non- appreciation of documents or erroneous appreciation or otherwisecannot be construed as lack of jurisdiction. Only in cases,where if the provisions of the Act is not providing any power tothe authority and directly hit any of the provisions of theIncome Tax Act, then alone, the Court can considered the case,where there is a lack of jurisdiction for the purpose ofentertaining a writ petition. In order to sustain theentertainability of the writ petitions, the practice isdeveloped that every case, jurisdiction point is raised, whichall are mostly based on the factual aspects of the matter. Thus,the High Court is expected to be cautious, while entertainingthe writ petitions even in such cases, where the petitionershave raised the point of jurisdiction. The point of jurisdictionis such warranting an interference must be the consideration forthe purpose of entertaining a writ petition and even an iota ofdoubt in respect of the factual adjudication, then the matter isto be allowed to go on the hands of the Appellate authority, whois the final fact finding authority under the provisions of theAct. 6. The importance of the Appellate remedy contemplated underthe Statute can never be undermined at any circumstances. Thefinal fact finding made by the Appellate authority would be ofvaluable assistance for the High Court for the purpose ofexercise of power of judicial review under Article 226 of theConstitution of India. In the event of entertaining the writpetition based on the order-in-original, the litigants are alsodeprived of their right of appeal and further, there is apossibility of non-adjudication of certain vital facts orcommissions or commissions or otherwise. Thus, these aspects areto be borne in mind, while entertaining a writ petition directlyagainst the orders in original. 7. The legislative intention for providing an appeal is thatthe aggrieved person must be given an opportunity to redresstheir grievances with reference to the original records. TheAppellate authorities are bound to verify the original records,if necessary. Such a valuable opportunity need no be denied tothe litigants aggrieved. 8. This apart, the Appellate authority, Taxation Tribunalsare manned by the experts in taxation. Therefore, adjudicationof the facts with reference to the documents by such expertswould be of greater benefit to the litigant as well as to theConstitutional Courts. Thus, the aggrieved person, in allcircumstances, must be allowed to prefer an appeal in the mannerprescribed and after exhausting the Appellate remedy, he has toapproach the proper Forum. 7. The legislative intention for providing an appeal is thatthe aggrieved person must be given an opportunity to redresstheir grievances with reference to the original records. TheAppellate authorities are bound to verify the original records,if necessary. Such a valuable opportunity need no be denied tothe litigants aggrieved. 8. This apart, the Appellate authority, Taxation Tribunalsare manned by the experts in taxation. Therefore, adjudicationof the facts with reference to the documents by such expertswould be of greater benefit to the litigant as well as to theConstitutional Courts. Thus, the aggrieved person, in allcircumstances, must be allowed to prefer an appeal in the mannerprescribed and after exhausting the Appellate remedy, he has toapproach the proper Forum. 9. This being the principles to be adopted, this Court is ofthe considered opinion that the petitioner has to adjudicate allthe disputed issues even in case, he relies of the orders of theCourt, documents etc., and redress his remedy in the mannerprescribed. This being the principles to be followed, thepetitioner is at liberty to prefer an appeal before thejurisdictional Appellate authority in a prescribed format withina period of four weeks from the date of receipt of a copy ofthis order and by complying with the provisions of the Statutesand Rules. If any such appeal is filed by the petitioner, theAppellate authority is empowered to adjudicate the same onmerits and in accordance with law and by affording anopportunity to the writ petitioner and dispose of the same asexpeditiously as possible. 10. With these directions, both the writ petitions standdisposed of. No costs. Sd/- Assistant Registrar(CS-VIII) //True Copy// Sub Assistant Registrar Kak To The Income Tax OfficerNon-Corporate Ward 3(1)No.63, Race Course Road,Coimbatore. +1cc to Mr.A.P.Srinivas, Advocate, S.R.No.34162+1cc to Mr.P.J.Rishikesh, Advocate, S.R.No.34544 W.P.Nos.2142 & 2143 of 2017 PMK(CO)CB(10/08/2021)