TaxTMI 
TaxTMI 
2011 (5) TMI 698
X X X X Extracts X X X X
X X X X Extracts X X X X
....n particular, Assessing Officer made addition of Rs.37,79,713/- in the income of the assessee towards "unaccounted receipt in the invoice of sale/on-money receipt". The petitioner carried the matter in appeal before the CIT(Appeals), who by order dated 31st March 2000 allowed the appeal. 3. By an order dated 4th January 2008, the Tribunal remanded the matter back to the CIT (Appeals) for passing a speaking order with respect to certain deposits. However, the issue of addition of unaccounted receipt of Rs.37,79,713/- was sent back to the Assessing Officer for verification of 17 depositors who had made deposits for booking flats, shops, offices, etc. Relevnt portion of the order of the Tribunal reads as under: "19. As is seen from the above finding of the CIT(A), it is clear that all the seventeen customers who have deposited money with the assessee for purchase of the premises are identifiable. As these five persons who have denied on-money but they could not prove the withdrawals and the purpose of withdrawal, in the absence of these, the CIT(A) should not have deleted the addition rather should have remitted the matter to the file of Assessing Officer. In view ....
X X X X Extracts X X X X
X X X X Extracts X X X X
....rvaluation of closing stock Rs. 5,99,300 Aggrieved by the order, assessee preferred an appeal. CIT(A), vide his order No.CAB/I-77/99-2000 dt.31.3.2000 deleted all the additions. Aggrieved by the order of CIT(A)-I, Baroda, Department filed an appeal before ITAT. Hon'bel ITAT, vide its order no.ITA No.1612/Ahd/2000 dt. 4.1.2008 set aside the issue regarding deletion of addition of Rs.37,79,713/- by the CIT(A) to the file of the Assessing Officer for verification on the issues mentioned below: i) to examine the depositors who has deposited for purchase of premise, (ii) to examine the price prevailing in the same locality, (iii) the instances which are comparable to the present premises and (iv) referring the matter to the valuer for proper valuation of the property in respect to the order of the CIT(A). 2. Assessee is carrying out construction business under the name and style of M/s.Shakti Construction Co. Assessee has shown construction receipts of Rs.58,86,570/- and net profit is shown at Rs.4,51,486/-. The profit from construction activity is 7.66%. During the course of original assessment proceedings, books of accounts were rejected u/s.145....
X X X X Extracts X X X X
X X X X Extracts X X X X
....d this Court challenging the notice of reopening. 8. In response to the notice issued, the respondents have appeared and filed affidavit in reply contending, inter alia, that the Tribunal had restored the issue regarding addition of Rs.37,79,713/- to the file of the Assessing Officer. As per the direction of the Tribunal, question of valuation of immovable property was referred to the Valuation Officer to arrive at a fair market value. Despite reminders, such report was not available from the Valuer till 29th December 2009. Since the assessment was getting time-barred on 31st December 2009, order of assessment was passed on 29th December. The valuation report was received on 31st December 2009 in which total value of the property was estimated at Rs.2,37,14,700/-. The Assessing Officer, therefore, believed that the income chargeable to tax has escaped assessment. Notice for reopening of assessment was, therefore, issued. 9. In the above factual background, learned advocates appearing for the parties have made submissions before us for final disposal of the petition. 10. Learned counsel Shri Shah appearing for the petitioner focused mainly on the power ....
X X X X Extracts X X X X
X X X X Extracts X X X X
....that calls for consideration is whether, in the facts of the case, the Assessing Officer had the authority and jurisdiction to issue notice of reopening of the assessment. Answer to such question would depend on the combined effect of the provisions contained in sections 147, 148, 149 and 150 of the Act. 13. Section 147 of the Act, as is well known, pertains to the power of the Assessing Officer to assess or reassess any income which has escaped assessment. In short, it provides that if the Assessing Officer has reason to believe that any income chargeable to tax escaped assessment for any assessment year, he may subject to the provisions of sections 148 to 153, assess or reassess such income and also any other income chargeable to tax which has escaped assessment. Section 148 of the Act pertains to issuance of notice where the Assessing Officer is of the opinion that any income chargeable to tax has escaped assessment. Sub-section (1) of section 148 in particular provides that before making the assessment, reassessment or recomputation under section 147, the Assessing Officer shall serve on the assessee a notice requiring him to furnish within such period as may be speci....
X X X X Extracts X X X X
X X X X Extracts X X X X
....nt or recomputation could not have been made at the time the order which was the subject-matter of the appeal, reference or revision, as the case may be, was made by reason of any other provision limiting the time within which any action for assessment, reassessment or recomputation may be taken." Section 153 of the Act pertains to time limit for completion of assessment and re-assessment. It is not necessary to reproduce the entire section. Suffice it to say that sub-section (1) thereof, provides for time limit for completion of assessment beyond which period, the assessment would be time-barred. 14. The question that we need to decide in the present petition is whether, having undertaken the exercise of reassessing the income of the assessee under section 150 of the Act, to give effect to the directions of the Tribunal and having finally passed the order, was it permissible for the Assessing Officer to reopen such assessment, that too, several years after the end of completion of period of six years from the end of assessment year in question. 15. Chapter XIV of the Act pertains to procedure for assessment and starts with section 139 of the Act. Sect....
X X X X Extracts X X X X
X X X X Extracts X X X X
....e clause and states that notwithstanding anything contained in section 149, notice under section 148 may be issued at any time for the above purposes. 18. We may notice that reopening of assessment is envisaged under section 147 or to the extent provided in section 150. As already noticed, reassessment or reopening of assessment under section 147 is governed by the provisions of section 148 and 149 of the Act and reopening would be permissible only within six years from the end of the relevant assessment year and not beyond. On the other hand, sub-section (1) of section 150 of the Act obviates the requirement of adhering to the time limit specified in section 149 if the case falls within the parameters of said section. Other than these provisions, no provision has been pointed out to us where assessment can be reopened. We are conscious that for the period prior to 1st April 2003, Chapter XIV B of the Act contains special provisions for assessment of search cases and for the period post 1.4.2003, provisions have been made in Chapter XIV itself in the form of section 153A onwards making special provisions for assessment in case of search or requisition. Such assessment pro....
X X X X Extracts X X X X
X X X X Extracts X X X X
....he basis that the Assessing Officer was of the opinion that time limit was getting over on 31st December 2009. 22. Permitting the Assessing Officer to reopen an assessment already framed, which if he had not done in time would have been rendered time barred, that too several years after completion of six years from the end of relevant assessment year, in our opinion, is not supported by any statutory provisions. 23. This brings us to the question of alternative remedy raised by the counsel for the Revenue. It is by now well settled that writ jurisdiction is essentially a discretionary jurisdiction. It is often stated that writ may not be issued only because it is lawful to do so. Such discretion, however, is governed by well laid down principles and self imposed restrictions by the courts. One such ground on which the court may refuse to entertain a writ is availability of equally efficacious alternative remedy particularly if it is a statutory remedy. This again is never considered as an absolute bar and is in the nature of self imposed restriction. Such restriction, however, may not be applied if the remedy is found to be illusory, onerous or burdensome. To th....
X X X X Extracts X X X X
X X X X Extracts X X X X
.... with it, but is rather a rule which courts have laid down for the exercise of their discretion. 24.2 In the case of State of Madhya Pradesh v. Bhailal Bhai, AIR 1964 SC 1006, the Apex Court held and observed as under: "17. At the same time we cannot lose sight of the fact that the special remedy provided in Art. 226 is not intended to supersede completely the modes of obtaining relief by an action in a civil court or to deny defences legitimately open in such actions. It has been made clear more than once that the power to give relief under Art. 226 is a discretionary power. This is specially true in the case of power to issue writs in the nature of mandamus. Among the several matters which the High Courts rightly take into consideration in the exercise of that discretion is the delay made by the aggrieved party in seeking this special remedy and what excuse there is for it. Another is the nature of controversy of facts and law that may have to be decided as regards the availability of consequential relief. Thus, where, as in these cases, a person comes to the court for relief under Art. 226 on the allegation that he has been assessed to tax under a void legisl....
X X X X Extracts X X X X
X X X X Extracts X X X X
....under Art. 226 of the Constitution and, in our opinion, the High Court was not justified in dismissing the writ petition on the ground that an alternative remedy was available to the appellant under Sec. 68 of the U.P. State Universities Act." 24.4 In the case of Whirlpool Corporation v. Registrar of Trade Marks, Mumbai, AIR 1999 SC 22, the Apex Court observed as under: "20. Much water has since flown beneath the bridge, but there has been no corrosive effect on these decisions which, though old, continue to hold the field with the result that law as to the jurisdiction of the High Court in entertaining a writ petition under Article 226 of the Constitution, in spite of the alternative statutory remedies, is not affected, specially in a case where the authority against whom the writ is filed is shown to have had no jurisdiction or had purported to usurp jurisdiction without any legal foundation." 24.5 In the case of Veeri Chettiar v. S.T.Officer, Bombay, AIR 1971 Madras 155, the Madras High Court turned down the objection to the writ petition on the ground of availability of alternative remedy making following observations: "6. We shall immedi....