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Amaya Infrastructure Pvt. Ltd vs. ITO (Bombay High Court)
April, 27th 2016

S. 147: If the assessee responds to the S. 142(1)/ 143(2) notices, it means that he has submitted to the AO's jurisdiction and is estopped for filing a Writ Petition to challenge the same. The fact that the jurisdiction is challenged while participating in the proceedings is irrelevant

(i) Our jurisdiction under Article 226 of the Constitution of India is plenary. Therefore, we would exercise the same whenever we are of the view that interest of justice would require its exercise. We are clear that having of jurisdiction does not make it obligatory upon us to exercise our extraordinary writ jurisdiction without reference to the facts before us. Therefore, where the petitioners have participated in the proceedings under the Act before the Assessing Officer and thereafter file a writ petition on the ground that the authority has no jurisdiction, we normally will not entertain the petition. This is particularly so as an effective alternative remedy is available under the Act, to set aside the orders passed by the authority, which the petitioner claims is without jurisdiction. The provisions under Section 147 and 148 of the Act empowers the Assessing Officer to issue a reopening notice, subject to satisfaction of the parameters set out therein. It is open to the assessee to challenge the order of the Assessing Officer under the Act on the ground that the conditions precedent for its exercise are not satisfied. This could be done either by challenging it under Article 226 of the Constitution of India or by challenging it before the authorities under the Act. Therefore, where a party submits itself to the jurisdiction of the Assessing Officer and challenges the issue of his jurisdiction during the course of proceedings of reassessment, we would not normally exercise our jurisdiction. This is also particularly so as the petitioners are not remedyless and can challenge the orders of the Assessing Officer before the appellate authorities under the Act and secure the same ultimate relief.

(ii) In this case, we find that the petitioners have filed detailed information called for by the Assessing Officer under Section 142(1) and 143(2) of the Act and thus participated in the assessment proceedings. This having been done, it is not open for the petitioners to now contend that this Court should exercise its extraordinary jurisdiction and prohibit the Authorities from proceeding further with the impugned notice. This is particularly so as the question of jurisdiction has been raised by the petitioners before the Assessing Officer during the assessment proceedings under the Act. In the present facts, the petitioners have participated in the proceedings before the Assessing Officer. The objections to the reasons recorded by the Assessing Officer in support of the impugned notice during the assessment proceedings is to point out to him the reassessment proceedings are bad as the requirement of Sections 147 and 148 of the Act are not satisfied. It would be completely different scenario where the petitioners have not participated in the proceedings before the Assessing Officer and object to exercise of jurisdiction by the Assessing Officer at the very threshold and not while participating in the reassessment proceedings. In such cases, it is not a case of a party seeking identical relief by two parallel modes. The orders passed by the Assessing Officer are subject to effective, efficacious alternative remedy under the Act. Therefore, we see no reason to exercise our extraordinary jurisdiction in the facts of this case.

(iii) It may also be pointed out that the impugned notice was issued on 30th March, 2015 calling upon the petitioners to file its Return of Income within 30 days. However, the petitioners chose to file its Return of Income only on 29th December, 2015 and thereafter sought reasons in support of the impugned notice. This delay in filing the Return of Income cannot be lost sight of when one bears in mind the fact that the reopening proceedings have to be completed within one year from the end of the financial year, in which the impugned notice seeking to reopen the assessment was issued. This is also evidence of the fact that the object of the petitioners seems to be to delay the proceedings so as to leave very little time for the Assessing Officer to complete the reassessment proceedings. The aforesaid conduct of the petitioners coupled with its submitting to the jurisdiction of the Assessing Officer, disentitles the petitioners to the extraordinary relief under Article 226 of the Constitution of India.

(i) Commissioner of Income Tax Vs. ITSC & Ors. 365 ITR 87.
(ii) Whirlpool Corporation Vs. Registrar of Trade Marks & Ors. 8 SCC 1.
(iii) P.R. Easwaran Vs. Sixth Income Tax Officer, Circle II, Coimbatore 72 ITR 263.

 
 
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