AI Drafter 
TaxTMI 
TaxTMI 
2020 (3) TMI 395
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....petition No.5914 of 2018, the writ petitioner is in appeal. 2. The case of the petitioner is that it is a Malaysian company incorporated under the laws of Malaysia and has its registered office in Kuala Lumpur, Malaysia. It does not have any office or presence in India. Respondent no.2-Deputy Commissioner of Income Tax for the assessment year 2009-10 raised a demand dated 18.12.2017 for a sum of Rs. 20,84,448/- against the petitioner-company. The reassessment order was sought to be challenged before the learned Single Judge of this Court on the ground that the alleged breach of principles of natural justice by the respondent-assessing authority namely, non-service of the statutory notice under Section 148 of the Income Tax Act ('the Act'....
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....een initiated from the month of March 2016 followed by various notices on 29.03.2016, 02.06.2017, 12.07.2017, 11.10.2017 and 16.10.2017 followed by letter dated 07.11.2017 which would all indicate that there is no violation of the principles of natural justice. That the petitioner has deliberately avoided to approach the concerned authorities. Notwithstanding the same, in view of the fact that the assessee has an alternative and efficacious remedy of filing an appeal, the learned Single Judge was of the view that exercise of a writ jurisdiction under Article 226 of the Constitution of India was uncalled for. Hence, the writ petition was dismissed. 4. Sri Tushar Jarwal, learned counsel appearing for the appellant's counsel contends tha....
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....t the question of jurisdiction. Initially, the burden which the appellant would have to overcome is on the issue of an alternative and efficacious remedy. When such a remedy is available, necessarily the writ court would relegate the petitioner to the alternative remedy. Therefore, we do not find anything in the said judgment that affects the question of an alternative or efficacious remedy. The consideration on the issue as to whether the notice under the erstwhile Section 34 of the Act lacks jurisdiction or not is a question of fact and appreciation. Such appreciation can be done provided the learned Single Judge exercising his jurisdiction under Article 226 of the Constitution of India would hold that, even though there is an alternative....
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....e light of the well-recognised principles relating to the exercise of its jurisdiction, after an opportunity is given to the Income-tax Officer to meet the allegations made in the petition. We may also observe that we are constrained to set aside the order because we have no indication as to the grounds on which the High Court has rejected the petition which, prima facie, makes out a case which may require investigation and trial." It is on this ground that the Hon'ble Supreme Court even though there is an alternative and efficacious remedy entertained the writ petition and remitted the matter to the Income Tax Officer. This was a case where the High Court dismissed the writ petition without giving any reasons and the Hon'ble Supreme Cou....
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....medy is not an efficacious remedy. However, as held herein above, the said issue was not considered by the Hon'ble Supreme Court in Calcutta Discount Co.Ltd. case reported in (1961) 41 ITR 191. Therefore, we are of the view that the said judgment would be of no avail to the appellant. 7. Reliance is also placed on yet another judgment of the Division Bench of this Court in the case of Joint Commissioner of Income-Tax (LTU) and another v. Dell India Pvt.Ltd. reported in [2016] 382 ITR 310 wherein it was held that in the facts of the present case, the view of the learned Single Judge that the writ petition is maintainable on the question of jurisdiction of issuance of notice under Section 148 of the Income Tax Act was upheld. It is needles....
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.... placed on the judgment of the Hon'ble Supreme Court in Commissioner of Income-Tax and Others vs. Chhabil Dass Agarwal reported in [2013] 357 ITR 357 (SC) wherein the Hon'ble Supreme Court held at paragraph 19 as follows: "Thus, while it can be said that this court has recognized some exceptions to the rule of alternative remedy, i.e., where the statutory authority has not acted in accordance with the provisions of the enactment in question, or in defiance of the fundamental principles of judicial procedure, or has resorted to invoke the provisions which are repealed, or when an order has been passed in total violation of the principles of natural justice, the proposition laid down in Thansingh Nathmal's case, Titagarh Paper Mills'....