2025 (6) TMI 1231
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.... of India in item no.8 Mr. Amal Kumar Datta, Adv. ...For Union of India ORDER The Court :- 1. The above writ petitions raise a common question of law and have been filed, inter alia, challenging the show cause notices issued under Section 274 read with Section 271D of the Income Tax Act, 1961 (hereinafter refer to said 'Act') and the consequential demand cum orders issued under Section 271D of the said Act. 2. The relevant show-cause notices with particulars and the corresponding orders are extracted and noted down in a tabulated form hereinbelow : WPO No. Date of show- cause Date of order/demand with relevant section Assessment Year 290 of 2025 20.02.2025 28.03.2025 under Section 271DA 2019-20 291 of 2025 06.01.2025 30.03.2025 under Section 271D 2020-21 292 of 2025 06.01.2025 29.03.2025 under Section 271D 2019-20 293 of 2025 07.01.2025 29.03.2025 under Section 271D 2017-18 294 of 2025 03.01.2025 30.03.2025 under Section 271D 2018-19 295 of 2025 19.02.2025 29.03.2025 under Section 271D 2017-18 297 of 2025 04.01.2025 30.03.2025 under Section 271E 2016-17 300 of 2025 19.02.2025 30.03.2025 under Section 271D 2020-21 301 of 2025 25.02.2025 30....
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....ds would reveal that the petitioner had contradicted the same by a written communication enclosing therein screen shots from the portal to demonstrate that no order or satisfaction had been uploaded on the portal. 6. It is the petitioner's case that the department without adhering to the petitioner's request to disclose the satisfaction note had proceeded to pass the order under Sections 271D, 271DA and 271E of the said Act in respect of the relevant assessment years as noted above. 7. The learned advocates appearing in support of the writ petitions has drawn attention of this court not only to the show-cause notices but also to the response filed by the petitioner thereto, to highlight the fact that the recording of satisfaction contrary to the claim made by the respondents, was not available on the portal. He would submit that by a CBDT Circular No.09/DV/2016 dated 26th April, 2016, a clarification has been provided not only with regard to the departmental view as regards initiation of penalty proceeding but to bring an uniformity and to remove conflict in the procedure to be followed by the Assessing Officers below the rank of Joint Commissioner of Income Tax, while making a r....
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....ned in 246A of the said Act. He would submit that ordinarily when an efficacious alternative remedy is available, a Court exercising writ jurisdiction under Article 226 of the Constitution of India should not entertain the same. It is still further argued that it is not the case of the petitioner that the respondents did not have the jurisdiction to initiate the penalty proceedings. Once, the Court comes to a conclusion that the order passed by the authority is within the scope of its adjudication, ordinarily in such circumstances, in the event there is an alternative remedy available challenge, by way of invoking the extraordinary remedy is not permissible. Further according to the learned Additional Solicitor General, since, the matter would require examination of the assessment order in the form of evidence, this Court should not entertain the writ petitions. In support of his aforesaid contention, he has placed reliance on the Constitutional Bench judgment delivered by the Hon'ble Supreme Court in the case of Thansingh Nathmal vs. Superintendent of Taxes, Dhubri & Ors. reported in AIR 1964 SC 1419, the judgment delivered in the case of Commissioner of Income Tax vs. Chhabil Das....
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....proceedings under Sections 271D, 271DA and 271E of the said Act, without there being a satisfaction of the Assessing Officer as regards the contravention of the provision of Sections 269SS, 269ST and 269T of the said Act. However, before a proceeding to adjudicate the above issue, having regard to the objection raised by the respondents with respect to the maintainability of the writ petitions, I am of the view, such issue should be considered first. 12. I find that it is the respondents' contention that having regard to the statutory remedy in the form of an appeal available to the petitioner, this Court should not exercise the jurisdiction. There is no dispute that the petitioner has an alternative remedy in the form of an appeal from the order impugned. It is equally true that the petitioner had raised the jurisdictional issue as regard the competence of the department to initiate a penalty proceeding under Sections 271D, 271DA and 271E of the said Act. I find that the learned Additional Solicitor General by placing reliance on the judgment delivered in the case of Thansingh Nathmal (supra) has tried to impress upon this Court that when an alternative remedy in the form of a st....
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....having regard to the facts of the case, has a discretion to entertain or not to entertain a writ petition. But the High Court has imposed upon itself restrictions one of which is that if an effective and efficacious remedy is available, the High Court would not normally exercise its jurisdiction. But the alternative remedy has been consistently held by this Court not to operate as a bar in at least three contingencies, namely, where the writ petition has been filed for the enforcement of any of the Fundamental Rights or where there has been a violation of the principle of natural justice or where the order or proceedings are wholly without jurisdiction or the vires of an Act is challenged. There is a plethora of case -law on this point but to cut down this circle or forensic whirlpool, we would rely on some old decisions of the evolutionary era of the Constitutional law as they still hold the field" 14. From the above it will be aptly clear that in case the jurisdictional issue is raised the Court ordinarily does not refuse but accept the challenge to the same. Before proceeding further I must note that the Hon'ble Supreme Court in the recent judgment delivered in the case of God....
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....fficer being recorded regarding the contravention of Sections 269SS, 269ST and 269T of the said Act, no penalty proceeding can be initiated. In this context it would be relevant to extract the observation made by the Hon'ble Supreme Court in paragraphs 2 to 5 of the above judgment. "2. The assessee carried out this order in appeal. The Commissioner of Income Tax (Appeals) allowed the appeal and set aside the assessment order with a direction to frame the assessment de novo after affording adequate opportunity ot the assessee. 3. After remand, the Assessing Officer passed fresh assessment order. In this assessment order, however, no satisfaction regarding initiation of penalty proceedings under Section 271E of the Act was recorded. It so happened that on the basis of the original assessment order dated 26.02.1996, show cause notice was given to the assessee and it resulted in passing the penalty order dated 23.09.1996. Thus, this penalty order was passed before the appeal of the assessee against the original assessment order was heard and allowed thereby setting aside the assessment order itself. It is in the backdrop, a question has arisen as to whether the penalty order, whic....