Wp/4072/2017 Of M.ramalingam, (Huf) v. The Income Tax Officer

IN THE HIGH COURT OF JUDICATURE AT MADRAS THE HONOURABLE MR.JUSTICE S.M.SUBRAMANIAM M.Ramalingam (HUF),Rep., by its Kartha Mr.R.Prakash,111, Oor Gounder Thottam,Anna Nagar, Vellappanaickenpalayam,Chinnavedampatti Post,Coimbatore-641 006... Petitioner [Cause title substituted vide order dated 26.07.2021 in W.M.P.No.16874 of 2021 in W.P.No.4072 of 2017] The Income Tax Officer,Non-Corporate Ward – 2 (2),63, Race Course Road,Coimbatore-641 018... Respondent Prayer :Petition filed under Article 226 of the Constitution ofIndia praying for issuance of Writ of Certiorari to call for therecords on the file of the respondent and quash the impugnedorder issued under Section 143(3) read with Section 147 of theIncome Tax Act, 1961 in PAN: dated 21.12.2016. The final assessment order dated 21.12.2016, passed by theAssessing Officer under Section 143(3) read with Section 147 ofthe Income Tax Act, 1961 (hereinafter referred to as "the Act")is under challenge in the present writ petition. https://hcservices.ecourts.gov.in/hcservices/ 2.The original petitioner, Mr.M.Ramalingam (HUF), during thependency of the writ proceedings, expired and subsequently, hislegal heir was impleaded as petitioner in the present writpetition. During the assessment year 2009-10, the originalpetitioner sold his agricultural land at Chinnavedampatti,Coimbatore on 11.08.2008 vide Document No.5534 of 2008 throughhis Power of Attorney, that is, P/A Holder. Admittedly, noreturn of income was filed by the original petitioner. Noticeunder Section 148 of the Act was issued on 03.02.2011 to thepetitioner to assess the escaped long term capital gains.Thereafter, vide proceedings dated 03.02.2011, the AssessingOfficer in clear terms issued a communication stating that "fromthe information available with the Department, it is understoodyou have sold agriculture land to the extent of 3.10 acres on11.08.2008 for a consideration of Rs.6.9 crores in the capacityof HUF Status to M/s.Martin Plaza Private Limited through Powerof Attorney Shri E.K.Kumaresan. The above property is locatedin Chinnavedampatti and comes within the purview of capitalasset under Section 2(14) of the Income-tax Act, 1961. Further,it is noticed that you have failed to file return of income forthe relevant assessment year i.e., 2009-10 for the income earnedunder the head Capital Gain. In this regard, you are requiredto file return of income within the time allowed as per the 148Notice enclosed herewith”. 3.With reference to the said reasons, the petitionersubmitted the returns dated 31.03.2011 and an assessment orderwas passed on 21.12.2011. The matter went up to the Income TaxAppellate Tribunal 'A' Bench, Chennai and the Tribunal directedthe Assessing Authority to assessee/reassess and issue an orderaccordingly. Pursuant to the orders, the process of re-assessment had been completed and an assessment order was passedin proceedings dated 21.12.2016, which is under challenge in thepresent writ petition. 4.An opportunity was provided to the writ petitioner todefend his case in the manner prescribed. Admittedly, the writpetition is filed challenging the final order of assessmentpassed under Section 143(3) read with Section 147 of the Act.The said assessment order is an appeable order and thepetitioner admittedly, has not exhausted the appellate remedycontemplated under the provisions of the Act. Thus, this Courtis not inclined to entertain the factual merits, which all areraised in this writ petition. 5.The learned counsel for the petitioner raised grounds onmerits, which deserve an adjudication by the appellate authoritywith reference to the documents and evidences to be produced.Such an elaborate adjudication cannot be done in a writproceedings with reference to the disputed facts and more over 5.The learned counsel for the petitioner raised grounds onmerits, which deserve an adjudication by the appellate authoritywith reference to the documents and evidences to be produced.Such an elaborate adjudication cannot be done in a writproceedings with reference to the disputed facts and more over the appellate authority is the final fact finding authority andtherefore, the petitioner has to avail the opportunity providedunder the statute for the purpose of redressal of his grievances. 6.Exhausting the appeal remedy is the rule. Dispensing withthe appellate remedy is an exception. Power of discretion is tobe exercised discretely only if there is an imminent urgency ordamage, if any, caused or there is any threat, which cannot becompensated then alone, the extraordinary power may be invokedfor the purpose of granting relief by dispensing with theappellate remedy. 7.Power of judicial review of the High Court under Article226 of the Constitution of India is to scrutinise the processesand the procedures adopted by the competent authorities forarriving a particular decision in accordance with law, but notthe decision itself. Thus, the High Court cannot entertain anadjudicative process regarding the mixed question of fact andlaw with reference to the documents and evidences in original.High Court cannot resolve the disputed issues between theparties only based on the affidavits filed in the writpetitions. There is a possibility of omissions and commissions.Thus, adjudication before the appellate authority with referenceto such disputed findings of the original authority would be ofgreater importance. 8.In view of the facts and circumstances, the petitioner isat liberty to prefer an appeal to the jurisdictional appellateauthority within a period of four weeks from the date of receiptof a copy of this order in a prescribed form and by complyingwith the rules. In the event of receiving any such appeal fromthe petitioner, the appellate authority shall adjudicate thesame on merits and in accordance with law by affordingopportunity to the petitioner and dispose of the same asexpeditiously as possible. With the above directions, this writ petition standsdisposed of. No costs. Consequently, connected miscellaneouspetition is closed. Sd/- Assistant Registrar //True Copy// Sub Assistant Registrar abr To The Income Tax Officer,Non-Corporate Ward – 2 (2),63, Race Course Road,Coimbatore-641 018. +1cc to Mr.A.P.Srinivas, Advocate (SR No.36001) W.P.No.4072 of 2017 SSV (CO)PR (17/08/2021)