TaxTMI 
TaxTMI 
2022 (10) TMI 129
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....sue a writ of mandamus and certiorari/or any other appropriate writ/writs quashing the impugned notice under Section 148A(b) of the IT Act, 1961 dated 22.03.2022 and consequential order under Section 148A(d) along with notice under Section 148 of the IT Act, 1961 dated 31.03.2022 and proceedings initiated pursuant thereto; And II. Issue a writ of and/or order and/or direction ion the nature of prohibition commanding respondents to forebear from giving effect to and/or taking any step whatsoever pursuant to and/or in furtherance of the issuance of notice under Section 148; And III. Award cost of litigation; And IV. Pass such other order/orders and/or direction/directions as this Hon'ble Court may deem fit and proper; And And/or allow this writ petition." 2. Shorn off detailed narration of facts, suffice it to describe that based on information which suggests that income chargeable to tax for the Assessment Year 2015-16 has escaped assessment within the meaning of Section 147 of the IT Act, notice dated 22.03.2022 under Section 148A was issued calling upon the petitioner-College, bearing PAN AAFAS2114P, to furnish response electronically in 'e-proceeding' facility on o....
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....f the IT Act after assigning following reason in his Order dated 31.03.2022 passed under Section 148A(d): "*** On perusal of the submission of the assesse it is seen that, the assesse accepted about the transactions made in the bank accounts. It claims the income to be exempted. However, the assessee should have filed ITR and could have claimed exemptions as per the provisions of the Act. This shows that, the assesse has nothing to explain against the show cause notice regarding non- filing of ITR and escapement of income for the assessment year 2015-16. The assesse has failed to discharge the onus to prove as per the show cause notice. In absence of any satisfactory explanation, the case of the assessee is considered as a fit case for issuance of notice under Section 148 of the Act." 3. On the above factual backdrop, Sri Prajnaraj Mohanty, learned Advocate for the petitioner-assessee urged that the aforesaid reason ascribed by the Assessing Officer is not only bereft of application of mind but also the same is outcome of blameworthy preconceived approach. In furtherance to such argument, he submitted that the Assessing Officer has failed to address the core issue as to wheth....
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....ha Aided Educational Institutions are extended the retirement benefit. Said resolution is as follows: "No. 27950-IXE-MB-25/84-EYS Government of Orissa Education and Youth Services Department Resolution the 11th July 1984 Subject- Extension of retirement benefits to the employees of educational institutions of their choice established and administered by minorities having the right under clause (1) of Article 30 of the Constitution which are under the direct payment system of grant-in-aid. The Orissa Aided Educational Institutions Employees' Retirement Benefit Rules, 1981 were made in exercise of powers conferred by sub-section (1) of Section 27, read with sub-section (1) of Section 10 of the Orissa Education Act, 1969 and brought into force with effect from the 1st April 1982. As provided in Section 2 of the said Act, the said Act does not apply to the educational institutions of their choice established and administered by minorities under clause (1) of Article 30 of the Constitution. Therefore, the Orissa Aided Educational Institutions Employees' Retirement Benefit Rules, 1981 are not ipso facto applicable to such institutions. 2. Teachers of educational institutions e....
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....escapement of income for the Assessment Year 2015-16. In such view of the matter, not only the notice dated 31.03.2022 issued under Section 148 is tainted, but also the Order dated 22.03.2022 passed under Section 148A is vitiated. 4. Sri Radheyshyam Chimanka, learned Senior Standing Counsel for Income-tax Department countenancing the exercise of jurisdiction by the Income Tax Officer, Ward 1(1), Cuttack in initiating proceeding for assessment under Section 148, after consideration of reply dated 30.03.2022 furnished as required under Section 148A, submitted that the writ petition is premature inasmuch as the petitioner-assessee has ample opportunity to place its material before the Assessing Authority on merit as also raise objection against the Order dated 31.03.2022 passed under Section 148A(d) during the course of the assessment proceeding. Therefore, Sri Chimanka submitted that there being no prejudice caused to the petitioner, interference at this juncture by this Court under Article 226 of the Constitution of India would not be warranted. 5. Section 148A of the IT Act, which deals with conducting inquiry, providing opportunity before issue of notice under Section 148, reads....
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.... Commissioner that any books of account or documents, seized in a search under Section 132 or requisitioned under Section 132A, in case of any other person on or after the 1st day of April, 2021, pertains or pertain to, or any information contained therein, relate to, the assessee. Explanation.- For the purposes of this section, specified authority means the specified authority referred to in Section 151." 5.1. Bare reading of aforesaid provisions suggests that the Assessing Officer is required to obtain prior approval of specified authority; and afford opportunity of hearing by allowing not less than 7 days, but not exceeding 30 days from the date on which such notice was issued. Opportunity is extended to the petitioner by serving notice requiring it to explain as to why a notice under Section 148 for assessment should not be issued on the basis of information, which suggest that income chargeable to tax has escaped assessment in the case for the relevant assessment year and as a result of inquiry conducted, if any, as per clause (a) of Section 148A. 5.2. The notice dated 22.03.2022 issued under Section 148A clearly demonstrates that the Assessing Authority had in possessio....
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....nder- assessment or wrong assessment. 22. There are a catena of judgments of this Court holding that assessment proceedings can be reopened if the audit objection points out the factual information already available in the records and that it was overlooked or not taken into consideration. Similarly, if audit points out some information or facts available outside the record or any arithmetical mistake, assessment can be re-opened. *** 27. The expression 'information' means instruction or knowledge derived from an external source concerning facts or parties or as to law relating to and/or after bearing on the assessment. We are of the clear view that on the basis of information received and if the assessing officer is satisfied that reasonable ground exists to believe, then in that case the power of the assessing authority extends to re- opening of assessment, if for any reason, the whole or any part of the turnover of the business of the dealer has escaped assessment or has been under assessed and the assessment in such a case would be valid even if the materials, on the basis of which the earlier assessing authority passed the order and the successor assessing authority proc....
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....s including any voluntary contributions during the relevant previous year. Added to this, another condition for claiming exemption under Section 10(23C)(iiiab) is required to be justified, i.e., the petitioner- College is "existing solely for educational purposes and not for purposes of profit". These are matters of fact which are required to be adjudicated upon by the Assessing Officer at the first instance and thereafter in the event of any grievance, the same can be agitated and ventilated before the fora vested with power under the statute as the Income Tax Act is a self-contained code and exhaustive of the matters dealt with therein as held in Rao Bahasur Ravula Subba Rao Vrs. Commissioner of Income Tax, 1956 SCR 577 = AIR 1956 SC 604 = (1956) 30 ITR 163 (SC). 5.7. Since the petitioner-College has not furnished return, the Assessing Authority-Income Tax Officer, Ward 1(1), Cuttack had no opportunity to examine the veracity of such claim for exemption. Therefore, there is justification to issue notice for assessment of escaped income on opining to initiate proceeding under Section 148 disclosing the reason by passing Order dated 31.03.2022 under Section 148A. 5.8. The action ....
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.... by a reasonable man. That would be a question of law to be determined by the Court. Where all the material facts are fully found, and the only question is whether the facts are such as to bring the case within the provisions properly construed of some statutory enactment, the question is one of law only. The Court can interfere if the constitutional or statutory term essential for the exercise of the power has either been misapplied or misinterpreted. The Courts have always equated the jurisdictional review with the review for error of law and have shown their readiness to quash an order if the meaning of the constitutional or statutory term has been misconstrued or misapplied. It is permissible to interfere in a case where the power is exercised for improper purpose. If a power granted for one purpose is exercised for a different purpose, then it will be deemed that the power has not been validly exercised. If the power in this case is found to have not been exercised genuinely for the purpose of taking immediate action but has been used only to avoid embarrassment or wreck personal vengeance, then the power will be deemed to have been exercised improperly. The grounds which are ....
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.... has that meaning in such phrases as "proceeding in any cause or matter". When used alone, however, it is in certain statutes to be construed as synonymous with, or including "action" [Halsbury's Laws (3rd Edition) 5, 6]." The term "Legal Proceedings" is explained as : "'Legal Proceedings' mean prima facie that which the words would naturally import- i.e., legal process taken to enforce the rights of the Shipowner, Runchiman & Co. Vrs. Smyth & Co., 1994 (20) T.L.R. 625, per Lord Alverstone,C.J., at P.626." The said Dictionary also refers to a Book "The Law of Pleading under the Code of Civil Procedure" by Edwin E. Bryant, and quoted as under: " 'Proceeding' is a word much used to express the business done in courts. A proceeding in Court is an act done by the authority or direction of the court, express or implied. It is more comprehensive than the word 'action', but it may include in its general sense all the steps taken or measures adopted in the prosecution or defense of an action, including the pleadings and Judgment." The term 'proceeding' would only mean a legal process taken to enforce the rights. 5.12. The dictionary meaning of the word "proceeding" is "the instit....
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.... proceedings all connected by an intrinsic unity and are to be regarded as one legal proceeding." 5.17. In Oriental Gas Co. Ltd. Vrs. State of WB, (1973) 32 STC 141 (Cal) it is observed that a proceeding under the sales tax statute comprehends the whole procedure for the levy, assessment, and collection of the tax liability of a dealer. When some step or action is taken for the ascertainment of imposition of that liability, the proceeding can be said to have commenced under the Act. Filing of return is a step in the procedure for the assessment of the liability of a dealer under the Act. By filing of such a return the machinery for assessment and imposition of liability is set in motion and with the filing of such a return a proceeding commences under the Act. 5.18. The word 'initiate' has been employed in Section 20 of the Contempt of Courts Act, 1971, which provides that no Court shall initiate any proceedings for contempt, either on its own motion or otherwise, after the expiry of a period of one year from the date on which the contempt is alleged to have been committed. In the Pallav Sheth Vrs. Custodian, (2001) 107 Comp Cas 76 (SC) = (2001) 7 SCC 549 it has been held that in....
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....accordance with Rule 61 of the Rules proposing the proposed order and intimating the assessee his intention to take the proceeding in suo motu proceeding. Proviso (a) to Section 49(3) of the Act is the condition precedent to exercise the power of revisional authority under that procedure. It merely contemplates initiation of proceeding by the revisional authority on its own or otherwise. The proceeding can be said to be initiated only when the revisional authority on its own motion or on the motion made otherwise decides to issue notice to the other side. *** 16. Therefore, what is required and condition precedent for initiation of proceeding by invoking Section 9(3) of the Chhatisgarh Value Added Tax Act, 2005, would be initiation of proceeding under Section 9(3) of the Act and initiation can be done only when the revisional authority applies its mind to the facts of the case on his own motion or on the information received. Once there is application of mind by the revisional authority for suo motu proceeding or on the basis of the information received and he decides to issue notice as contemplated under Rule 61 of the Chhatisgarh Value Added Tax Rules, then the exercise of in....
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.... all the provisions of this Act shall, so far as may be, apply as if it were a return required to be furnished under sub-section (1). (4C) Every- *** (e) fund or institution referred to in sub- clause (iv) or trust or institution referred to in sub- clause (v) or any university or other e ducational institution referred to in sub-clause (iiiad) or sub-clause (vi) or any hospital or other medical institution referred to in sub-clause (iiiae) or sub-clause (via) of clause (23C) of Section 10; *** shall, if the total income in respect of which such research association, news agency, association or institution, fund or university or other educational institution or any hospital or other medical institution or trade union or body or authority or Board or Trust or Commission or infrastructure debt fund or mutual fund or securitization trust or venture capital company or venture capital fund is assessable, without giving effect to the provisions of Section 10, exceeds the maximum amount which is not chargeable to income-tax, furnish a return of such income of the previous year in the prescribed form and verified in the prescribed manner and setting forth such other particulars ....
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..../2002-TPL by the Government of India in Ministry of Finance, Department of Revenue as referred to by the petitioner in its reply to Notice dated 22.03.2022 issued under Section 248A. Said Circular is reproduced herein below: "F.No.153/127/2002-TPL Government of India Ministry of Finance Department of Revenue Central Board of Direct Taxes (TPL Division) To All the Chief Commissioners/Directors General of Income-tax Subject: Requirement of tax deduction at source in case of entities whose income is exempt under Section 10 of the Income-tax Act. 1. Subsequent to the amendment to Section 197A made by the Finance Act, 2002 whereby a new sub-section (1B) has been inserted with effect from 1st June, 2002, representations have been received seeking clarification whether the prescribed self-declaration under the said section can be submitted by entities exempt from tax under Section 10 even if the payments referred to in sub-section (1A) to be made to them exceed the threshold limit not subject to tax. 2. This matter has been examined by the Board. It has been decided that in case of those funds or authorities or Boards or bodies, by whatever name called, whose incom....
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....Corporations referred to in clause (26BB); (xiv) Boards referred to in clause (29A). 3. The contents of this Circular may be brought to the notice of all the officers working in your region. Sd/- (Deepika Mittal) Under Secretary (TPL-III) Tel 3092742" 6.5. Reading of provision contained in Section 10(23C)(iiiab) indicates that the exemption is hedged with certain conditions, which are as follows: i. The educational institution must be existing one; ii. The educational institution is solely for educational purposes and not for purposes of profit; iii. The educational institution is wholly or substantially financed by the Government. 6.6. While considering the claim for exemption, the aforesaid conditions are required to be dealt with by the fact-finding authority on the evidence(s) adduced by the assessee/claimant. Whereas such exemption is subject to satisfaction of certain conditions, it cannot be said that the exemption envisaged under Section 10(23C)(iiiab) is generally exempted. 6.7. This Court in the case of Atlas Engineering Works (Pvt.) Ltd. Vrs. Commissioner of Commercial Taxes and others, 2000 SCC OnLine Ori 296 = (2000) 120 STC 588 in the context of "genera....
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....preme Court of India has propounded as follows: "66. To sum up, we answer the reference holding as under: i. Exemption notification should be interpreted strictly; the burden of proving applicability would be on the assessee to show that his case comes within the parameters of the exemption clause or exemption notification. ii. When there is ambiguity in exemption notification which is subject to strict interpretation, the benefit of such ambiguity cannot be claimed by the subject/assessee and it must be interpreted in favour of the revenue. iii. The ratio in Sun Export case (supra) [Sun Export Corporation Vrs. Collector of Customs, (1997) 6 SCC 564] is not correct and all the decisions which took similar view as in Sun Export case (supra) stands overruled." 6.10. Another significant fact which has come to fore in the matter is that while complying with the terms of notice dated 31.03.2022 under Section 148, the petitioner-College has furnished return in Form ITR-7 mentioning therein that the same is filed under Section 139(4A). The petitioner-College, by furnishing said return for the Assessment Year 2015-16, copy of which is enclosed to the writ petition as Annexure-4 se....
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.... 6.13. To illustrate, but not to be construed as exhaustive, following serious disputed questions of fact may fall for determination by the statutory authorities vested with power under the IT Act: i. Whether the return in Form IT-7 furnished under Section 139(4A) by the petitioner-College, can be accepted on the face of its claim of exemption from filing return based on pre-amended position contained in Section 139(4C)(e) vis- à-vis provisions contained in Section 139(4D)? ii. Whether the claim of exemption under Section 10(23C)(iiiab) by the petitioner-College can be considered in the light of return in Form ITR-7 mentioning therein that the same has been filed under Section 139(4A), which is applicable to the educational institution having charitable activity, but not minority educational institution as claimed in the writ petition? iii. Whether the petitioner-College exists solely for educational purposes and not for purposes of profit and it is wholly or substantially financed by the Government? iv. Whether the Certificate issued on 28th of January, 2021 by the National Commission for Minority Educational Institutions and Letter dated 10.12.2021 and Letter dat....
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....hether at this stage of notice under Section 148, writ Court should venture into the merits of the controversy when AO is yet to frame assessment/re-assemment in discharge of statutory duty casted upon him under Section 147 of the Act?" After making elaborate discussion on the subject, the said Court held as follows: "Thus, the consistent view is that where the proceedings have not even been concluded by the statutory authority, the writ Court should not interfere at such a pre-mature stage. Moreover it is not a case where from bare reading of notice it can be axiomatically held that the authority has clutched upon the jurisdiction not vested in it. The correctness of order under Section 148A(d) is being challenged on the factual premise contending that jurisdiction though vested has been wrongly exercised. By now it is well settled that there is vexed distinction between jurisdictional error and error of law/fact within jurisdiction. For rectification of errors statutory remedy has been provided. In the light of aforesaid settled proposition of law, we find that there is no reason to warrant interference by this Court in exercise of the jurisdiction under Article 226/227 of t....
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....arned counsel for the respondents submitted that on factual adjudication it was to be established by the appellant that its case is covered by the ratio of this Court's decision in Krishi Utpadan Mandi Samiti case [1995 Supp (3) SCC 433]. '10. The issues relating to entertaining writ petitions when alternative remedy is available, were examined by this Court in several cases and recently in State of H.P. Vrs. Gujarat Ambuja Cement Ltd. [(2005) 6 SCC 499]. 11. Except for a period when Article 226 was amended by the Constitution (Forty-second Amendment) Act, 1976, the power relating to alternative remedy has been considered to be a rule of self-imposed limitation. It is essentially a rule of policy, convenience and discretion and never a rule of law. Despite the existence of an alternative remedy it is within the jurisdiction or discretion of the High Court to grant relief under Article 226 of the Constitution. At the same time, it cannot be lost sight of that though the matter relating to an alternative remedy has nothing to do with the jurisdiction of the case, normally the High Court should not interfere if there is an adequate efficacious alternative remedy. If somebody appro....
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....tate of Maharashtra [(2001) 8 SCC 509], Pratap Singh Vrs. State of Haryana [(2002) 7 SCC 484 = 2002 SCC (L&S) 1075] and GKN Driveshafts (India) Ltd. Vrs. ITO [(2003) 1 SCC 72]. 14. In Harbanslal Sahnia Vrs. Indian Oil Corporation Ltd. [(2003) 2 SCC 107] this Court held that the rule of exclusion of writ jurisdiction by availability of alternative remedy is a rule of discretion and not one of compulsion and the court must consider the pros and cons of the case and then may interfere if it comes to the conclusion that the Petitioner seeks enforcement of any of the fundamental rights; where there is failure of principles of natural justice or where the orders or proceedings are wholly without jurisdiction or the vires of an Act is challenged. 15. In Veerappa Pillai Vrs. Raman & Raman Ltd. [1952 SCR 583 = AIR 1952 SC 192], CCE Vrs. Dunlop India Ltd. [(1985) 1 SCC 260 = 1985 SCC (Tax) 75 = AIR 1985 SC 330], Ramendra Kishore Biswas Vrs. State of Tripura [(1999) 1 SCC 472 = 1999 SCC (L&S) 295 = AIR 1999 SC 294], Shivgonda Anna Patil Vrs. State of Maharashtra [(1999) 3 SCC 5 = AIR 1999 SC 2281], C.A. Abraham Vrs. ITO [(1961) 2 SCR 765 = AIR 1961 SC 609], Titaghur Paper Mills Co. Ltd. V....
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.....P. Vrs. Mohd. Nooh [AIR 1958 SC 86] and K.S. Venkataraman and Co. (P) Ltd. Vrs. State of Madras [AIR 1966 SC 1089] have held that though Article 226 confers very wide powers in the matter of issuing writs on the High Court, the remedy of writ is absolutely discretionary in character. If the High Court is satisfied that the aggrieved party can have an adequate or suitable relief elsewhere, it can refuse to exercise its jurisdiction. The Court, in extraordinary circumstances, may exercise the power if it comes to the conclusion that there has been a breach of the principles of natural justice or the procedure required for decision has not been adopted. [See N.T. Veluswami Thevar Vrs. G. Raja Nainar [AIR 1959 SC 422], Municipal Council, Khurai Vrs. Kamal Kumar [AIR 1965 SC 1321 = (1965) 2 SCR 653], Siliguri Municipality Vrs. Amalendu Das [(1984) 2 SCC 436 = 1984 SCC (Tax) 133], S.T. Muthusami Vrs. K. Natarajan [(1988) 1 SCC 572], Rajasthan SRTC Vrs. Krishna Kant [(1995) 5 SCC 75 = 1995 SCC (L&S) 1207 = (1995) 31 ATC 110], Kerala SEB Vrs. Kurien E. Kalathil [(2000) 6 SCC 293], A. Venkatasubbiah Naidu Vrs. S. Chellappan [(2000) 7 SCC 695], L.L. Sudhakar Reddy Vrs. State of A.P. [(2001)....
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.... by the Hon'ble Supreme Court as follows: "30. On the other hand, we find force in the contention of the learned senior counsel, Sri Radhakrishnan, appearing for the appellants that the High Court has committed error in entertaining the writ petition under Article 226 of Constitution of India at the stage of show cause notices. Though there is no bar as such for entertaining the writ petitions at the stage of show cause notice, but it is settled by number of decisions of this Court, where writ petitions can be entertained at the show cause notice stage. Neither it is a case of lack of jurisdiction nor any violation of principles of natural justice is alleged so as to entertain the writ petition at the stage of notice. High Court ought not to have entertained the writ petition, more so, when against the final orders appeal lies to this Court. The judgment of this Court in the case of Union of India Vrs. Guwahati Carbon Ltd., (2012) 11 SCC 651 = 2012 SCC OnLine SC 210 relied on by the learned senior counsel for the appellants also supports their case. In the aforesaid judgment, arising out of Central Excise Act, 1944, this Court has held that excise law is a complete code in order ....
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....ly give an opportunity to the assessees to reply to the amended show cause notice as well as the original show cause notice within a period of six weeks from the date of the assesses receiving the amended show cause notice. 6. On receiving replies from the assessees the Assessing Authority shall hear and dispose of the matters as expeditiously as possible in accordance with law and in accordance with the directions given hereinabove. 7. We make it clear that the Assessing Authority will decide the matters uninfluenced by any observations made by the High Court/Tribunal in the earlier round of litigation. 8. All contentions on both sides are expressly kept open. At this stage we do not wish to express any opinion on the merits of the case." 8.6. In an identical case relating to writ petition questioning the Show Cause Notice relating to service tax under Chapter-V of the Finance Act, 1994, viz. Bhubaneswar Development Authority Vrs. Commissioner of Central Excise, 2015 SCC OnLine Ori 53, this Court observed as follows: "5. After hearing the learned counsel for the respective parties, it would be relevant herein to take note that the judgment of the Hon'ble Supreme Court in ....
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....y the Collector of Central Excise, Hyderabad against an order passed by the Tribunal. In the facts and circumstances of the said case, Hon'ble Supreme Court came to hold that this finding of fact having been ultimately held against the revenue by the Tribunal which is the final fact forum and dismissed the appeal filed by the revenue on the basis that it did not want to interfere the facts determined by the Tribunal in the said case. 8. In the present set of circumstances of the case, any finding by the Court at this stage is likely to be prejudicial, either the Petitioner-BDA or the Service Tax Authority. ***" 8.7. In Supreme Paper Mills Limited Vrs. Assistant Commissioner of Commercial Taxes, (2010) 11 SCC 593 = (2010) 31 VST 1 (SC), the Hon'ble Supreme Court after taking note of earlier case being Sales Tax Officer, Ganjam Vrs. Uttareswari Rice Mills, (1973) 3 SCC 171 = 1973 SCC (Tax) 123 = AIR 1972 SC 2617 = (1972) 30 STC 567 (SC) = (1973) 89 ITR 6 (SC), wherein challenge was made to Show Cause Notice, has been pleased to make the following observation: "14. In our considered opinion, the ratio of the aforesaid decision in Uttareswari Rice Mills case [(1973) 3 SCC 171 = 19....
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....he amount specified in the notice". In terms of sub-section (10) of said Section 11- A, the person concerned has to be afforded opportunity of being heard and after considering his representation, if any, the amount of duty of excise due from such person has to be determined by the Central Excise Officer. Without going into other details regarding the period of limitations and the circumstances under which show-cause notice can be issued, the crux of the matter is that such determination is after the issuance of show-cause notice followed by affording of opportunity and consideration of representation, if any, made by the person concerned. *** 10. The issuance of show-cause notice under Section 11-A also has some significance in the eye of the law. The day the show-cause notice is issued, becomes the reckoning date for various issues including the issue of limitation. If we accept the submission of the respondent that a prima facie view entertained by the department whether the matter requires to be proceeded with or not is to be taken as a decision or determination, it will create an imbalance in the working of various provisions of Section 11-A of the Act including periods of....
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....r filing the reply was required to be extended in order to enable it to collect further material. It cannot, therefore, be said that the notice dated 31.03.2022 under Section 148 is vulnerable. Reference can be made to GKN Driveshafts (India) Ltd. Vrs. ITO, (2003) 1 SCC 72 = 2002 SCC OnLine SC 1116 as the guiding rule for the Adjudicating Authorities as enunciated by the Hon'ble Apex Court. Paragraph 5 of said Judgment speaks as follows: "5. We see no justifiable reason to interfere with the order under challenge. However, we clarify that when a notice under Section 148 of the Income Tax Act is issued, the proper course of action for the noticee is to file return and if he so desires, to seek reasons for issuing notices. The assessing officer is bound to furnish reasons within a reasonable time. On receipt of reasons, the noticee is entitled to file objections to issuance of notice and the assessing officer is bound to dispose of the same by passing a speaking order. In the instant case, as the reasons have been disclosed in these proceedings, the assessing officer has to dispose of the objections, if filed, by passing a speaking order, before proceeding with the assessment in re....
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....lable 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." 50. In Punjab National Bank Vrs. O.C. Krishnan, (2001) 6 SCC 569 this Court considered the question whether a petition under Article 227 of the Constitution was maintainable against an order passed by the Tribunal under Section 19 of the DRT Act and observed : (SCC p. 570, paras 5-6) "5. In our opinion, the order which was passed by the Tribunal directing sale of mortgaged property was appealable under Section 20 of the Recovery of Debts Due to Banks and Financial Institutions Act, 1993 (for short 'the Act'). The High Court ought not to have exercised its jurisdiction under Article 227 in view of the provision for alternative remedy contained in the Act. We do not propose to go into the correctness of the decision of the High Court and whether the order passed by the Tribunal was correct or not has to be decided before an appropriate forum. 6. T....
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.... the pleadings of the State but would be free to satisfy itself whether any case as such is made out by a person invoking its extraordinary jurisdiction under Article 226 of the Constitution. 30. The Court while exercising its jurisdiction under Article 226 is duty-bound to consider whether: (a) adjudication of writ petition involves any complex and disputed questions of facts and whether they can be satisfactorily resolved; (b) the petition reveals all material facts; (c) the petitioner has any alternative or effective remedy for the resolution of the dispute; (d) person invoking the jurisdiction is guilty of unexplained delay and laches; (e) ex facie barred by any laws of limitation; (f) grant of relief is against public policy or barred by any valid law; and host of other factors. The Court in appropriate cases in its discretion may direct the State or its instrumentalities as the case may be to file proper affidavits placing all the relevant facts truly and accurately for the consideration of the Court and particularly in cases where public revenue and public interest are involved. Such directions are always required to be complied with by the State. No relief c....
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....(Del)] has held that the use of the expression "may" in Section 144B(7)(viii) is not decisive. Where discretion is conferred upon quasi judicial authority whose decision has civil consequences, the word "may" which denotes discretion should be construed to mean a command. Consequently, the requirement of giving an assessee a reasonable opportunity of personal hearing is mandatory." 8.14. The present case is neither a case of lack of jurisdiction nor can there be any allegation of violation of principles of natural justice. It is enunciated in Deepak Agro Foods Vrs. State of Rajasthan, (2008) 7 SCC 748 = (2008) 10 SCR 877 = (2008) 16 VST 454 (SC) as follows: "17. All irregular or erroneous or even illegal orders cannot be held to be null and void as there is a fine distinction between the orders which are null and void and orders which are irregular, wrong or illegal. Where an authority making order lacks inherent jurisdiction, such order would be without jurisdiction, null, non est and void ab initio as defect of jurisdiction of an authority goes to the root of the matter and strikes at its very authority to pass any order and such a defect cannot be cured even by consent of the....
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....uthority which has jurisdiction over the matter, but has assumed it otherwise than in the mode prescribed by law, is not a nullity. It may be liable to be questioned in those very proceedings, but subject to that it is good, and not open to collateral attack. Therefore even if the proceedings for assessment were taken against a non-registered dealer without the issue of a notice under Section 10(1) that would be a mere irregularity in the assumption of jurisdiction and the orders of assessment passed in those proceedings cannot be held to be without jurisdiction and no suit will lie for impeaching them on the ground that Section 10(1) had not been followed. This must a fortiori be so when the appellant has itself submitted to jurisdiction and made a return. We accordingly agree with the learned Judges that even if the registration of the appellant as a dealer under Section 8 is bad that has no effect on the validity of the proceedings taken against it under the Act and the assessment of tax made thereunder." [Emphasis laid] 8.16. The petitioner has ample opportunity to agitate issues before the Assessing Officer. Therefore, this Court holds entertainment of the writ petition at t....