TaxTMI 
TaxTMI 
TaxTMI 
2019 (9) TMI 390
X X X X Extracts X X X X
X X X X Extracts X X X X
....owing gross total income of Rs. 22,89,76,090.00, admitted that it is liable to pay income tax at 10% of gross total income, but vide the return, claimed a refund of Rs. 4,57,95,220.00 on the ground that writ petitioner company is a deductee qua 'Tax Deducted at Source' ('TDS' for brevity) to the tune of Rs. 6,86,92,827.00. 5 The case of writ petitioner Assessee was selected for scrutiny and a notice under section 143(2) of IT Act being notice dated 28.7.2016 was issued to writ petitioner assessee. Thereafter, on 26.11.2018, a notice under section 142(1) of IT Act calling for details was also sent. Writ petitioner assessee submitted details called for. Personal hearings were also held on 3.8.2016, 3.12.2018 and 19.12.2018. After considering the returns, replies and the submissions made in the personal hearings, the respondent passed an order dated 24.12.2018 being order No.ITBA/AST/F/144C/2018- 19/1014525544(1) (this order shall hereinafter be referred to as' impugned draft assessment order' for the sake of convenience and clarity). 6 Post impugned draft assessment order, petitioner company sent communications dated 21.1.2019 and 19.2.2019 raising certain objections, but a final a....
X X X X Extracts X X X X
X X X X Extracts X X X X
....the exercise of examining whether there is any jurisdictional fact qua Section 144C being invoked by the respondent. Learned counsel for writ petitioner pressed into service Southern Petrochemical Industries Corporation Ltd. Vs. Income tax Officer reported in [2009] 224 CTR 90 (Madras) judgment and submitted that respondent cannot resort to section 144C when there is no variation in income returned by writ petitioner assessee. 13 Per contra, learned Revenue counsel emphatically submitted that Southern Petrochemical case is clearly distinguishable. It was submitted by learned Revenue counsel that Southern Petrochemical case was in a regular tax case appeal under section 260A of IT Act and a perusal of the substantial question of law on which the appeal was decided will reveal that the issue before the Court was whether the Tribunal was right in holding that provisions of section 144B of IT Act are attracted and as to whether reference to IAC was in accordance with section 144B of IT Act on the facts and circumstances of the case. It was further submitted by learned Revenue counsel that the facts and circumstances of Southern Petrochemical case is completely different and distinguis....
X X X X Extracts X X X X
X X X X Extracts X X X X
....e reference made under section 144B and it was always subject to the IAC accepting the explanation given by the assessee. ...." 17 This court after a careful analyse of rival submissions and the case law is convinced that the submission of learned Revenue counsel that Southern Petrochemical case is distinguishable deserves to be accepted for more than one reason, as Southern Petrochemical case turns on section 144B which is different from section 144C which we are now concerned with, more importantly the facts scenario is completely different and the substantial question of law itself makes it clear that answer to substantial question of law is on the facts and circumstances of the case. In this regard, this court reminds itself of the celebrated Padma Sundara Rao case being Padma Sundara Rao Vs. State of Tamil Nadu reported in (2002) 3 SCC 533, the relevant paragraph is paragraph 9 and the same reads as follows : "9......... There is always peril in treating the words of a speech or judgment as though they are words in a legislative enactment, and it is to be remembered that judicial utterances are made in the setting of the facts of a particular case, said Lord Morris in Herri....
X X X X Extracts X X X X
X X X X Extracts X X X X
....t it is 21 months. This makes it important to look into the manner in which writ petitioner has projected / articulated limitation ground in the affidavit filed in support of the writ petition. Relevant paragraph is paragraph 20(M) and the same reads as follows : "M.That no further action shall be taken in the case of the Petitioner since the limitation to pass an order under subsection (3) of Section 143 of the Act has already expired. Since Section 144C of the Act is not applicable in the Petitioner's case, the limitation to pass an assessment order under sub-section (3) of Section 143 of the Act for the concerned AY 2015-16 was 21 months as per Section 153 of the Act and the same expired on 31.12.2017. However, the Respondent had intimated the Petitioner vide email dated 15.12.2017 that a reference has been sent to Foreign Authorities under the Exchange of Information. It is submitted that in case of such reference, as per clause (x) of Explanation 1 to Section 153 of the Act, the period from the date of making reference for exchange of information to the date of receipt of such information by the Department or one year whichever is less is excluded from the limitation p....
X X X X Extracts X X X X
X X X X Extracts X X X X
....uch less raise the jurisdictional fact issue, on the contrary, filed a regular statutory appeal to appellate authority and the appellate authority also passed a detailed order on 25.6.2018 dismissing the writ petitioner assessee's appeal. 23 It was pointed out by learned Revenue counsel before the first appellate court that writ petitioner Assessee did not appear and though writ petitioner assessee did not appear in its capacity as appellant, appellate authority has passed an order on merits. In other words, order dated 25.6.2018 was on merits, is learned Revenue counsel's say. This was contested by learned counsel for writ petitioner by saying that writ petitioner has not given legal quietus to this order and that the same is being contested in the Tribunal. It may not be necessary to delve further into this controversy, because in the considered view of this court, it is a fairly well settled legal principle that assessee cannot be precluded from raising a particular issue merely because it has not raised the issue in the previous assessment years. In this regard, this Court reminds itself of Devilal Modi case. In Devilal Modi Vs. Sales Tax Officer, Ratlam and others [AIR 1965 ....
X X X X Extracts X X X X
X X X X Extracts X X X X
....ecessarily move towards alternate remedy. There is no disputation or disagreement that alternate remedy is available to writ petitioner Assessee under section 246A of IT Act. In this regard, a judgment of this Hon'ble Court made in Martech Peripherals (P.) Ltd. Vs. Deputy Commissioner of Income-tax, Company Circle IV(1), Chennai reported in [2017] 81 taxmann.com 73 (Madras) was pressed into service by learned counsel for writ petitioner. A Hon'ble Single Judge of this court had held that not entertaining a writ petition when there is alternate remedy is only a matter of self restraint employed by Courts. Hon'ble Single Judge held that alternate remedy by itself does not exclude the jurisdiction or power of this court to entertain a writ petition. This court cannot have any disagreement on this proposition. However, this Martech case does not come to the aid of the writ petitioner, because the ground of absence of jurisdiction or jurisdictional fact has been negatived by this court in this case. In Martech case, Hon'ble Single Judge had held that writ petition can be entertained even when there is alternate remedy when challenge is on the ground of absence of jurisdiction and / or b....
X X X X Extracts X X X X
X X X X Extracts X X X X
....t statutory procedures. It is only where statutory remedies are entirely ill-suited to meet the demands of extraordinary situations, as for instance where the very vires of the statute is in question or where private or public wrongs are so inextricably mixed up and the prevention of public injury and the vindication of public justice require it that recourse may be had to Article 226 of the Constitution. But then the Court must have good and sufficient reason to bypass the alternative remedy provided by statute. Surely matters involving the revenue where statutory remedies are available are not such matters. We can also take judicial notice of the fact that the vast majority of the petitions under Article 226 of the Constitution are filed solely for the purpose of obtaining interim orders and thereafter prolong the proceedings by one device or the other. The practice certainly needs to be strongly discouraged." (Underlining made by this court to supply emphasis and highlight) 30 This court also reminds itself of Satyawati Tandon case rendered a quarter of a century later being United Bank of India Vs. Satyawati Tondon and others reported in (2010) 8 SCC 110. 31 Satyawati Tondo....