Wp/13786/2004 Of Marshals` Supersoft Tech v. The Income Tax Officer

IN THE HIGH COURT OF JUDICATURE AT MADRASDATED: 12.03.2007 CORAM: THE HONOURABLE MR.JUSTICE P.D.DINAKARANandTHE HONOURABLE MRS.JUSTICE CHITRA VENKATARAMAN W.P.No.13786 of 2004 Marshals' Supersoft Technologies Limited172, Kamarajar SalaiPondicherry-605 013rep. by Mr.R.AgarwalDirector... PetitionerversusThe Income Tax OfficerCompany Ward IV (1)121, Mahatma Gandhi RoadNungambakkamChennai-600 034... Respondent-----PRAYER: Writ Petition filed under Article 226 of the Constitution of Indiafor the issue of a writ of Certiorari calling for the records of therespondent in file Ref:AACCM0023G/2000-01 dated 30.3.2004 relating to theassessment year 2000-01 and to quash the same.-----For petitioner :Mr.V.RamachandranSenior Advocate forDr.Anita SumanthFor respondent :Mrs.Pushya SitaramanSenior Standing Counsel forIncome TaxORDER (Order of the Court was made by CHITRA VENKATARAMAN,J.) This writ petition is preferred against the order of assessment dated30.3.2004, seeking a writ of certiorari to quash the same. The petitioner https://hcservices.ecourts.gov.in/hcservices/ herein challenges the said order on the question of jurisdiction that forthe purpose of assessment and other related matters under the CompaniesAct, the Income Tax Act and other enactments, the registered office is atPondicherry. Apart from questioning the jurisdiction, the assesseechallenges the order of assessment under Section 148 on merits too. 2. It is seen that the assessee filed its return of income for 2000-2001 with the office of the respondent herein and claimed tax benefitsunder Section 80-IA of the Income Tax Act. Admittedly, the return ofincome was deficient for want of financial statements. The said defectwas not rectified within the time stipulated, in spite of a notice callingupon the petitioner to do so. The assessment was reopened under Section147. The petitioner had filed the financial statement, but asked for thereturn of income filed originally as a return, in response to Section 148.The petitioner was called upon to furnish the required particulars asregards its claim for benefit under Section 80-IA. Summons issued to theDirectors were returned unserved with postal remarks "not known". Theassessment was completed on merits, and rejecting the plea ofjurisdiction. 3. Mr.V.Ramachandran, learned senior counsel appearing for thepetitioner, submitted that considering the total lack of jurisdiction toassess this petitioner under Section 148, the writ petition filed meritedconsideration by this Court. He also referred to the orders passed bythis Court in other writ petitions and prayed for interference. 4. The Revenue has filed its counter affidavit. 5. Learned standing counsel appearing for the respondent, however,submitted that considering the admitted position that a remedy isavailable to the assessee by way of an appeal to the Commissioner ofIncome Tax (Appeals), the writ petition is not maintainable. She alsosubmitted that the contentions that are taken here, merit to be taken onlybefore the statutory authorities and there are no extraordinarycircumstances for this Court to exercise jurisdiction under Article 226 ofthe Constitution of India. 4. The Revenue has filed its counter affidavit. 5. Learned standing counsel appearing for the respondent, however,submitted that considering the admitted position that a remedy isavailable to the assessee by way of an appeal to the Commissioner ofIncome Tax (Appeals), the writ petition is not maintainable. She alsosubmitted that the contentions that are taken here, merit to be taken onlybefore the statutory authorities and there are no extraordinarycircumstances for this Court to exercise jurisdiction under Article 226 ofthe Constitution of India. 6. Learned senior standing counsel for Income Tax also pointed outthat in none of the documents filed by the petitioner, was there anymention of the fact that petitioner's registered office is in Pondicherry.Only when the notice was issued under Section 148, did theassessee/petitioner take the plea on the jurisdiction aspect that itsregistered office was in Pondicherry. The respondent states that thepetitioner failed to furnish any documentary evidence to support itsclaim. The respondent submitted that the petitioner sought for thetransfer of its assessment files, to pondicherry. The revenue contendsthat, in any event, this would not exonerate the responsibility of thepetitioner to substantiate its claim with necessary evidence. The revenuefurther stated that the petitioner sought for adjournments on several occasions on some pretext or the other, and after several adjournments, itsubmitted that all the books, computers and records were destroyed in afire accident in Chennai on 6.1.2002. In support of this, thepetitioner filed a copy of the First Information Report dated 11.11.2002,nearly ten months after the alleged fire accident took place. Therespondent also pointed out that except these records, no other recordswere stated to have been damaged. It is further stated that thepetitioner made itself unavailable at all known addresses even for serviceof notices and letters. A letter was also addressed to the Pondicherryaddress seeking information on the claim of benefit under Section 80-IA.The notices dated 16.1.2004 and 28.1.2004 issued to the Pondicherryaddress furnished by the petitioner were returned with a remark "left".Notices were again sought to be served on the petitioner at the MarshallsRoad address in Madras. These were however refused to be received on theground that the company' s address had been changed to Pondicherry.Considering this, and the attitude of the assesssee, the learned standingcounsel submitted that the petitioner is not entitled to any relief. 7. We agree with the submissions made by the learned standing counselappearing for the respondent herein on the question of availability ofalternative remedy. A perusal of the orders impugned herein show that theissues raised in the writ petitions were taken before the respondent too,who had passed the orders after considering the same. Since the issueinvolved in the writ petitions required investigation into the facts,including the issue on jurisdiction, we do not find any extraordinarycircumstance to go into the merits. It is a matter for the statutoryauthorities to consider if and when an appeal is preferred. 8. Admittedly, the assessee has an alternative remedy, and it is notdenied that it is an efficacious remedy. In a recent decision reported in279 ITR 342 (DR.K.NEDUNCHEZHIAN Vs. DEPUTY CIT), a Division Bench of thisCourt, affirmed the decision reported in 274 ITR 37 (DR.K.NEDUNCHEZHIANVs. DEPUTY CIT) and following the decision of the Apex Court, held thatwhen there is an alternative remedy, ordinarily, writ jurisdiction underArticle 226 of the Constitution of India should not be invoked and thatthe principle applies fully to the proceedings herein too. 8. Admittedly, the assessee has an alternative remedy, and it is notdenied that it is an efficacious remedy. In a recent decision reported in279 ITR 342 (DR.K.NEDUNCHEZHIAN Vs. DEPUTY CIT), a Division Bench of thisCourt, affirmed the decision reported in 274 ITR 37 (DR.K.NEDUNCHEZHIANVs. DEPUTY CIT) and following the decision of the Apex Court, held thatwhen there is an alternative remedy, ordinarily, writ jurisdiction underArticle 226 of the Constitution of India should not be invoked and thatthe principle applies fully to the proceedings herein too. 9. Considering the issues involved and applying the decision citedabove, we dismiss the writ petitions. It is open to theassessee/petitioner to prefer appeal, if they deem fit, within a period of thirty days from the date of receipt of a copy of this order. No costs.Consequently, the connected M.P.No.16203 of 2004 and W.V.M.P.No.571 of2005 are closed.ksv Sd/Asst. Registrar/true copy/Sub Asst.Registrar To: 1.The Income Tax OfficerCompany Ward IV (I)121, Mahatma Gandhi RoadNungambakkamChennai-600 034.+ One cc to Dr. Anitha Sumanth Advocate sR 15290+ One cc to Mrs. Pusya Sitaraman Advocate sR 15297MM(co)sg 2/4/07W.P.No.13786 of 2004Dated: 12.03.2007