TaxTMI 
TaxTMI 
2022 (6) TMI 1281
X X X X Extracts X X X X
X X X X Extracts X X X X
.... assessee has been flagged on the Insight Portal in accordance with Risk Management Strategy Formulated by the CBDT, New Delhi. As per which, during search at the residence of one Sumit Jindal, some documents were seized and it has come to the notice that RKS Builders have made payments of Rs.4,07,50,000/- for the purpose of purchase of property. Since the assessee was partner of M/s RKS Builders at the relevant point of time to the extent of 20% share hence, it is stated that the information suggested that the income chargeable to tax for the Assessment Year 2018-19 had escaped assessment. 3. As per the petitioner request was made to the authorities for providing information vide Communication dated 28th March, 2022. It is claimed by the Petitioner that on 7th of April, 2022, the respondent passed order under Clause (d) of Section 148-A of the Act without providing information and issued notice under Section 148 for reassessing the income of the assessee. It is against these proceedings that the petitioner has approached this Court under Article 226 of the Constitution of India. 4. Ld. Counsel for the petitioner claims that there is no tangible material linking the purchase ....
X X X X Extracts X X X X
X X X X Extracts X X X X
.... be treated so. Bare perusal thereof shall reveal that the objections sought to be raised in present petition have not been raised in the said communication. In the facts of this case we need to observe that the petitioner has been served with notice under Section 148 of the Act. In case the present proceedings culminate in the order of assessment under Section 147 of the Act, the same will be appealable. Statutory appeal is provided under the Act. All pleas raised herein can well be raised in the appeal. 8. Question as to whether High Court should exercise its writ jurisdiction under Article 226 of the Constitution of India if an effective and efficacious alternate remedy is available, has been subject matter of continuous debate over the years. The Apex Court in the case of C.A. Abraham vs. Income Tax Officer, Kottayam and another, AIR 1961 SC 609 observed that - "3. In our view the petition filed by the appellant should not have been entertained. The Income Tax Act provides a complete machinery for assessment of tax and imposition of penalty and for obtaining relief in respect of any improper orders passed by the Income Tax authorities, and the appellant could not be....
X X X X Extracts X X X X
X X X X Extracts X X X X
.... invoked the Writ jurisdiction of the High Court at the first instance without first exhausting the alternate remedies provided under the Act. In our considered opinion, at the said stage of proceedings, the High Court ought not have entertained the Writ Petition and instead should have directed the assessee to file reply to the said notices and upon receipt of a decision from the Assessing Authority, if for any reason it is aggrieved by the said decision, to question the same before the forum provided under the Act." 9. The Apex Court has further dealt with question of exercise of jurisdiction in the presence of statutory remedy in the case of 'Nivedita Sharma vs. Cellular Operators Assn. of India', (2011) 14 SCC 337, that where hierarchy of appeals is provided by the statute, the parties must exhaust the statutory remedy before resorting to writ jurisdiction for relief and held that - "12. In Thansingh Nathmal v. Supdt. of Taxes AIR 1964 SC 1419 this Court adverted to the rule of self-imposed restraint that the writ petition will not be entertained if an effective remedy is available to the aggrieved person and observed: (AIR p. 1423, para 7) '7. ....
X X X X Extracts X X X X
X X X X Extracts X X X X
.... '77. ... So far as the jurisdiction of the High Court under Article 226-or for that matter, the jurisdiction of this Court under Article 32-is concerned, it is obvious that the provisions of the Act cannot bar and curtail these remedies. It is, however, equally obvious that while exercising the power under Article 226.Article 32, the Court would certainly take note of the legislative intent manifested in the provisions of the Act and would exercise their jurisdiction consistent with the provisions of the enactment'." 10. Recently, Apex Court summarized the principles governing exercise of writ jurisdiction by the High Court in the presence of alternate remedy in case of 'Radha Krishan Industries vs. State of Himachal Pradesh, 2021 SCC OnLine SC 334', holding that - "28. The principles of law which emerge are that : (i) The power under Article 226 of the Constitution to issue writs can be exercised not only for the enforcement of fundamental rights, but for any other purpose as well; (ii) The High Court has the discretion not to entertain a writ petition. One of the restrictions placed on the power of the High Court is where an effect....