TaxTMI 
TaxTMI 
2022 (10) TMI 129
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....tioner craves for following reliefs: "I. Issue 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 petitio....
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....r, Ward-1(1), Cuttack, upon consideration of reply of the petitioner-assessee proceeded to issue notice under Section 148 of 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 precon....
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....d Youth Services Department published in the Odisha Gazette, Supplement No.33, dated 17.08.1984 has been referred to indicate that the employees of the Odisha 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 Oris....
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....f the IT Act, it was not required to furnish return in view of provisions contained in Section 139(4C)(e). It is, therefore, contended that the Assessing Authority has misconstrued that there has been 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 ....
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....g, seized in a search under Section 132 or requisitioned under Section 132A, in the case of any other person on or after the 1st day of April, 2021, belongs to the assessee; or (c) the Assessing Officer is satisfied, with the prior approval of the Principal Commissioner or 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 in....
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....ion in his possession within the meaning of Section 19 of the State Act. In such cases of obvious mistakes apparent on the face of the record of assessment, that record itself can be a source of information, if that information leads to a discovery or belief that there has been an escape of assessment or under- 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 assess....
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.... supplied] 5.6. Conjoint reading of Section 10(23C)(iiiab) and Rule 2(bbb) makes it clear that in order to claim exemption from income tax, the petitioner is required to establish by furnishing required evidence before the Assessing Authority to the effect that the Government grant to Stewart Science College, Cuttack-educational institution exceeded fifty percent of the total receipts 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-Colleg....
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.... exist have a reasonable nexus with the purpose for which the power is to be exercised. In other words, if an inference from facts does not logically accord with and flow from them, the Courts can interfere treating them as an error of law. Thus, the Court can see whether on the basis of the facts and circumstances found, any reasonable man can say that an opinion as is formed can be formed 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 ....
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.... "the regular and orderly progression of a law suit. Including all acts and events between the time of commencement and the entry of judgment; any procedural means for seeking redress from a tribunal or agency". Words and Phrases (Legally Defined) [2nd Edition] Butterworths Publication explains the term "Proceedings" as: "The term 'proceeding' is frequently used to note a step in an action, and obviously it 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 pr....
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....ru Vrs. Indian Young Lawyers Association, (2020) 9 SCC 121 [9-Judge Bench]. 5.16. Reference is made to Mathew M. Thomas & Others Vrs. Commissioner of Income Tax, (1999) 2 SCC 543, wherein it has been said that it is sufficient to refer to the Judgment of the Court in Garikapati Veeraya Vrs. N. Subbiah Choudhry, AIR 1957 SC 540 wherein the court said at p.553: "(i) That the legal pursuit of a remedy, suit, appeal and second appeal are really but steps in a series of 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 ....
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....to enact or reject them at the polls, independent of legislative assembly. Hughes Vrs. Bryan, Okl., 425 P. 2d 952, 954. Not all state constitutions provide for initiative." 13. Thus, the word 'initiation' of suo motu revision as stated in proviso (a) to Section 9(3) of the Chhatisgarh Value Added Tax Act, 2005, has a definite connotation. Initiation of revisional proceeding is the time when the revisional authority applies its mind to the facts/materials on record and decides to direct issuance of notice in 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 invoki....
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.... voluntary contributions referred to in sub-clause (iia) of clause (24) of Section 2, shall, if the total income in respect of which he is assessable as a representative assessee (the total Income for this purpose being computed under this Act without giving effect to the provisions of Sections 11 and 12) 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 as may be prescribed and 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 univ....
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.... provisions envisaged in sub-section (4D) of Section 139 of the IT Act which in unequivocal term speaks that every college, which is not required to furnish return of income or loss under any other provision of Section 139, shall furnish the return and all provisions of the IT Act shall apply as if it were a return under Section 139(1). Nonetheless, it has already filed return under Section 139(4A) claiming it to be educational institution with charitable activity. 6.4. This Court has taken note of Circular No.4/2002 dated 16th July, 2002 issued vide F.No.153/127/2002-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 th....
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.... (iiiab) and any hospital or other institution for the reception and treatment of persons as referred to in sub-clause (iiiac) of clause (23C); (x) Credit Guarantee Fund Trust for Small Scale Industries referred to in clause (23EB) till assessment year 2006-2007; (xi) Provident fund to which the Provident Funds Act, 1925 (19 of 1925) referred to in sub-clause (i), recognised provident fund referred to in sub-clause (ii), approved superannuation funds referred to in sub-clause (iii), approved gratuity fund referred to in sub-clause (iv) and funds referred to in sub-clause (v) of clause (25); (xii) Employees' State Insurance Fund referred to in clause (25A); (xiii) 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; ....
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....is no exemption from tax generally. 6.9. Viewed in aforesaid perspective, Section 10(23C)(iiiab) of the IT Act is not generally exempt qua the petitioner-College. Therefore, it is open for the Adjudicating Authority to examine whether the claim for exemption on the basis that the petitioner-College, claiming to be a minority institution on the basis of certification in the year 2021, is existing solely for educational purposes and not for purposes of profit and it is wholly and substantially financed by the Government. In case of ambiguity, the benefit tilts in favour of Revenue as laid down in Dilip Kumar and Company & Others, (2018) 9 SCC 1 = 2018 SCC OnLine SC 747 = 2018 (361) ELT 577 (SC). In the said case, 5-Judge Constitution Bench of Hon'ble Supreme 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 in....
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.... the amount of annual receipt as may be prescribed." 6.12. Thus, furnishing return under Section 139(4A) clinches that the petitioner-College has ex facie admitted its claim to have fallen within scope of exemption under Section 10(23C)(iiiad) of the Income Tax Act, 1961. On the one hand, by way of pleading in the writ petition the petitioner-College asserts that no return is required to be filed qua exemption claimed to have fallen within scope of Section 10(23C)(iiiab); on the other hand, in the return furnished in connection with proceeding under Section 148 it has disclosed the claim qua educational institution with charitable nature of activity so as to embrace exemption under Section 11 of the IT Act. Such conflicting and contradictory stance requires appropriate adjudication by the Assessing Officer/statutory authority based on the material on record. 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 ....
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.... petitioner has made feeble attempt to question the propriety and justness of Order dated 31.03.2022 passed under Section 148A(d) of the IT Act by opining to proceed with assessment under Section 148 after duly considering the reply dated 30.03.2022 submitted by the petitioner in response to the notice dated 22.03.2022 issued under Section 148A(b) by way of writ petition. 7.1. It is pertinent to refer to Judgment dated 02.06.2022 delivered by the High Court of Punjab and Haryana at Chandigarh in the case of Anshul Jain Vrs. Principal Commissioner of Income Tax, CWP No.10219 of 2022. In the said case by invoking writ jurisdiction the petitioner had challenged the Order dated 31.03.2022 issued under Section 148A(d) of the IT Act and notice dated 31.03.2022 under Section 148 whereby the objections raised by the petitioner to the notice issued under Section 148A(b) were rejected. The said Court framed the following issue: "Whether 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 makin....
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....refore, this Court finds that no case is made out by the petitioner to interfere with the issue of notice under Section 148 by the Adjudicating Authority after taking decision to initiate proceeding on passing order under Section 148A(d) of said Act. 8. As required under Section 148 of the IT Act, the Assessing Officer having obtained prior approval of the Principal Chief Commissioner of Income Tax, Odisha, issued notice dated 31.03.2022 and the petitioner-College furnished return in terms of such notice. Therefore, meddling at this stage by this Court would be premature and entertainment of writ petition by exercise of power under Article 226 of the Constitution of India would run contrary to settled principles. 8.1. Self-imposed restriction for entertainment of writ jurisdiction has been succinctly enunciated by the Hon'ble Supreme Court in Star Paper Mills Ltd. Vrs. State of U.P., (2006) 10 SCC 201 = 2006 SCC OnLine SC 979 which is to the following effect: "4. In response, learned 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 Utpa....
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.... a writ jurisdiction is not intended to supersede completely the modes of obtaining relief by an action in a civil court or to deny defence legitimately open in such actions. The power to give relief under Article 226 of the Constitution is a discretionary power. Similar view has been reiterated in N.T. Veluswami Thevar Vrs. G. Raja Nainar [1959 Supp (1) SCR 623 = AIR 1959 SC 422], Municipal Council, Khurai Vrs. Kamal Kumar [(1965) 2 SCR 653 = AIR 1965 SC 1321], Siliguri Municipality Vrs. Amalendu Das [(1984) 2 SCC 436 = 1984 SCC (Tax) 133 = AIR 1984 SC 653], S.T. Muthusami Vrs. K. Natarajan [(1988) 1 SCC 572 = AIR 1998 SC 616], Rajasthan SRTC Vrs. Krishna Kant [(1995) 5 SCC 75 = 1995 SCC (L&S) 1207 = (1995) 31 ATC 110 = AIR 1995 SC 1715], Kerala SEB Vrs. Kurien E. Kalathil [(2000) 6 SCC 293 = AIR 2000 SC 2573], A. Venkatasubbiah Naidu Vrs. S. Chellappan [(2000) 7 SCC 695], L.L. Sudhakar Reddy Vrs. State of A.P. [(2001) 6 SCC 634], Shri Sant Sadguru Janardan Swami (Moingiri Maharaj) Sahakari Dugdha Utpadak Sanstha Vrs. State 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....
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....ciples of natural justice. We may add that where the proceedings themselves are an abuse of process of law the High Court in an appropriate case can entertain a writ petition." The above position was recently highlighted in U.P. State Spinning Co. Ltd. Vrs. R.S. Pandey [(2005) 8 SCC 264 = 2005 SCC (L&S) 78], SCC pp. 270-72, paras 10-16." 8.2. In a case where assessment order was challenged, the High Court quashed the same invoking writ jurisdiction; however, the Hon'ble Supreme Court in the matter of Commissioner of Income Tax Vrs. Chhabil Dass Agarwal, (2014) 1 SCC 603 = 2013 SCC OnLine SC 717 = (2013) 357 ITR 357 (SC) reiterated the scope and purport of exercise of power under Article 226 of the Constitution of India and re-stated the self-imposed restrictions qua entertainment of writ petition: "12. The Constitution Benches of this Court in K.S. Rashid and Son Vrs. Income Tax Investigation Commission [AIR 1954 SC 207], Sangram Singh Vrs. Election Tribunal [AIR 1955 SC 425], Union of India Vrs. T.R. Varma [AIR 1957 SC 882], State of U.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 t....
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....redressal of grievances, a writ petition should not be entertained ignoring the statutory dispensation." 8.3. This Court in the case of National Aluminium Company Ltd. Vrs. Employees State Insurance Corporation, 2012 SCC OnLine Ori 90 has observed as follows: "24. This Court in the case of Rohit Kumar Behera Vrs. State of Orissa, 2012 (II) ILR-CUT 395, held as under: '21. Law is well settled that unless it is shown that the notice to show cause has been issued palpably without any authority of law, the show cause notice cannot be quashed in exercise of writ jurisdiction under Articles 226 and 227 of the Constitution.' " 8.4. Bearing in mind the above principles, the scope of alternative remedy vis-à-vis entertainment of writ petition for exercising extraordinary jurisdiction under Article 226 of the Constitution of India qua the impugned Notice(s) vide Annexure-1 series issued by the Income Tax Officer, Ward 1(1), Cuttack, it may be apt to refer to Union of India Vrs. Coastal Container Transporters Association, (2019) 20 SCC 446 wherein it has been laid down by the Hon'ble Supreme Court as follows: "30. On the other hand, we find force in the....
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.... stated that as far as possible the High Courts should not interfere in matters at show cause notice stage. 3. Without reply to the show cause notice the appellants herein preferred Original Petitions before the Tamil Nadu Taxation Special Tribunal which decided the matters against the assessees. The assessees filed writ petitions against the order passed by the Special Tribunal in the High Court of Madras in which impugned judgments have been delivered, against which these Civil Appeals have been filed. We find that the assessees have never replied to the show cause notices till date. 4. We are of the view that in such circumstances the Special Tribunal/High Court ought not to have interfered and they ought to have directed the assesse to reply to the show cause notice and exhaust the statutory remedy under the Act, which they have not done till date. 5. In the circumstances, to put an end to this controversy we, first of all, grant liberty to the Department to amend the show cause notices and take up additional grounds, if so advised, within a period of eight weeks from today. They will accordingly give an opportunity to the assessees to reply to the am....
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....s of a particular case." 6. Hon'ble Single Judge of Calcutta High Court in the case of Infinity Infotech Parks Ltd., (2015) 85 VST 465 (Cal) appears to have placed reliance on the judgment of Hon'ble Supreme Court as noted hereinabove in Para-66 which admittedly, is a leading judgment on the issue raised in the present case. In the said case, the Hon'ble Supreme Court came to conclude that something positive other than mere inaction or failure on the part of the manufacturer or producer or conscious or deliberate withholding of information when the manufacturer knew otherwise, is required before it is saddled with any liability, before the period of six months. But most importantly, the Hon'ble Supreme Court has noted thereafter that 'Whether in a particular set of facts and circumstances there was any fraud or collusion or willful misstatement or suppression or contravention of any provision of any Act, is a question of fact depending upon the facts and circumstances of a particular case. 7. On perusal of the aforesaid judgment of the Hon'ble Supreme Court, it is clear therefrom that Hon'ble Supreme Court in the said case was dealing with an appeal filed by the C....
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....e of failure to do so, the same would invalidate the notice. 16. The aforesaid provision is clear and explicit and there is no ambiguity in it. If the legislature had intended to give any other meaning as suggested by the counsel appearing for the appellant it would have made specific provision laying down such conditions explicitly and in clear words. It is a well-settled principle in law that the court cannot add anything into a statutory provision, which is plain and unambiguous. Language employed in a statute itself determines and indicates the legislative intent. If the language is clear and unambiguous it would not be proper for the court to add any words thereto and evolve some legislative intent not found in the statute." 8.8. Challenge being made to the Show Cause Notice, the Hon'ble Supreme Court in the case of CCE Vrs. Krishna Wax (P) Ltd., (2020) 12 SCC 572 = 2019 SCC OnLine SC 1470 at Paragraphs 7, 10 and 13 discussed thus: "7. Section 11-A thus deals with various facets including non- levy and non-payment of excise duty and contemplates issuance of a show-cause notice by the Central Excise Officer requiring the "person chargeable with duty" to sho....
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....eir findings of fact in each case and then, if necessary, the matter could be proceeded to the Tribunal and thereafter to the High Court. 8.10. The Hon'ble Supreme Court in Union of India Vrs. Guwahati Carbon Ltd., (2012) 11 SCC 651 has held as under: "8. Before we discuss the correctness of the impugned order, we intend to remind ourselves the observations made by this Court in Munshi Ram vs. Municipal Committee, Chheharta, (1979) 3 SCC 83. In the said decision, this Court was pleased to observe that: (SCC p. 88, para 23). "23. ... when a revenue statute provides for a person aggrieved by an assessment thereunder, a particular remedy to be sought in a particular forum, in a particular way, it must be sought in that forum and in that manner, and all the other forums and modes of seeking remedy are excluded." 8.11. The petitioner-College, in the instant case, has the fullest opportunity to refute allegations, if any, and rebut adverse finding/observations involved in the matter, as discussed above. The petitioner may also raise legal issues as well as factual disputes before the Assessing Officer during the course of proceeding. It is possible for the petitio....
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..... At this stage, the decision of this Court in the case of United Bank of India Vrs. Satyawati Tondon, (2010) 8 SCC 110 in which this Court had an occasion to consider the entertainability of a writ petition under Article 226 of the Constitution of India by by-passing the statutory remedies, is required to be referred to. After considering the earlier decisions of this Court, in paragraphs 49 to 52, it was observed and held as under: "49. The views expressed in Titaghur Paper Mills Co. Ltd. Vrs. State of Orissa, (1983) 2 SCC 433 were echoed in CCE Vrs. Dunlop India Ltd., (1985) 1 SCC 260 in the following words : (SCC p. 264, para 3) "3. ... Article 226 is not meant to short-circuit or circumvent 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 ....
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....n order passed by the Division Bench of the Orissa High Court quashing the showcause notice issued to the respondent under the Orissa Sales Tax Act by observing that the High Court had completely ignored the parameters laid down by this Court in a large number of cases relating to exhaustion of alternative remedy. 52. In City and Industrial Development Corpn. Vrs. Dosu Aardeshir Bhiwandiwala [(2009) 1 SCC 168] the Court highlighted the parameters which are required to be kept in view by the High Court while exercising jurisdiction under Article 226 of the Constitution. Paras 29 and 30 of that judgment which contain the views of this Court read as under : (SCC pp. 175-76) "29. In our opinion, the High Court while exercising its extraordinary jurisdiction under Article 226 of the Constitution is duty-bound to take all the relevant facts and circumstances into consideration and decide for itself even in the absence of proper affidavits from the State and its instrumentalities as to whether any case at all is made out requiring its interference on the basis of the material made available on record. There is nothing like issuing an ex parte writ of mandamus, order or d....
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....Court is a statutory forum of appeal on a question of law. That should not be abdicated and given a go- by by a litigant for invoking the forum of judicial review of the High Court under writ jurisdiction. The High Court, with great respect, fell into a manifest error by not appreciating this aspect of the matter. It has however dismissed the writ petition on the ground of lack of territorial jurisdiction. 32. No reason could be assigned by the appellant's counsel to demonstrate why the appellate jurisdiction of the High Court under Section 35 of FEMA does not provide an efficacious remedy. In fact there could hardly be any reason since the High Court itself is the appellate forum." 15. Applying the law laid down by this Court in the aforesaid decision, the High Court has seriously erred in entertaining the writ petition under Article 226 of the Constitution of India against the assessment order, bypassing the statutory remedies." 8.13. The Hon'ble Delhi High Court in the context of affording personal hearing during the course of Faceless Assessment, in the case of Assotech Realty Private Limited Vrs. National E-Assessment Centre and Another, 2022 SCC OnLin....
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....aid that a decree can be said to be without jurisdiction, and hence a nullity, if the court passing the decree has usurped a jurisdiction which it did not have; a mere wrong exercise of jurisdiction does not result in a nullity. The lack of jurisdiction in the court passing the decree must be patent on its face in order to enable the executing court to take cognizance of such a nullity based on want of jurisdiction. The Court further held that a distinction exists between a decree passed by a court having no jurisdiction and consequently being a nullity and not executable and a decree of the court which is merely illegal or not passed in accordance with the procedure laid down by law. A decree suffering from illegality or irregularity of procedure, cannot be termed inexecutable." 8.15. Constitution Bench comprising 5-Judges of the Hon'ble Supreme Court of India has culled out distinction between "want of jurisdiction" and "irregular assumption of jurisdiction" in the case of Central Potteries Ltd. Vrs. State of Maharashtra, (1963) 1 SCR 166 = AIR 1966 SC 932 = (1962) 13 STC 472 which is to the following effect: "7. In this connection it should be remembered that there i....