Pavan Kishanchand Tulsiani vs Union Of India
2023 Latest Caselaw 7 Guj

 C/SCA/22815/2019                            CAV JUDGMENT DATED: 02/01/2023




     IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

      R/SPECIAL CIVIL APPLICATION NO. 22815 of 2019
                           With
      R/SPECIAL CIVIL APPLICATION NO. 22818 of 2019
                           With
      R/SPECIAL CIVIL APPLICATION NO. 19274 of 2018
=============================================

PAVAN KISHANCHAND TULSIANI Versus UNION OF INDIA ============================================= Appearance:

MR BRIHAN R MADHAV(10412) for the Petitioner(s) No. 1 DS AFF.NOT FILED (N) for the Respondent(s) No. 1,2,3 =============================================

CORAM:HONOURABLE THE CHIEF JUSTICE MR. JUSTICE ARAVIND KUMAR and HONOURABLE MR. JUSTICE ASHUTOSH J.

SHASTRI

Date : 02/01/2023

(PER : HONOURABLE THE CHIEF JUSTICE MR. JUSTICE ARAVIND KUMAR)

1. These three Special Civil Applications are filed by

same assessee and on account of issue involved being

common these Special Civil Applications are taken up

together for consideration and disposed of by this

common judgment by narrating the facts of each case

chronologically hereinbelow.

2. Petitioner seeks to challenge the legality of re-

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opening of the assessment in all these petitions by

issuance of impugned notices and passing of the

impugned orders raising several contentions.

RE: SCA No. 19274 OF 2018

3. Petitioner is a Director / Partner in various firms and

derives income from various sources. For the Assessment

Year 2011-12, petitioner filed the return of income by

declaring his income to the tune of Rs.1,00,85,160/- and

paid tax to the tune of Rs.33,45,909/-. A notice dated

30.3.2018 under Section 148 of the Income Tax Act, 1961

('the Act' for short) was issued for re-assessing the

income and called upon the petitioner to file his return of

income in the prescribed form for the said assessment

year. On 29.8.2018, the assessee filed the reply denying

about the income having escaped assessment and

contending original income of return is once again offered

as income in the return of income filed in response to the

notice issued under Section 148 of the Act. Petitioner

sought for reasons supporting the action of re-opening of

the assessment / re-assessment. By communication dated

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17.9.2018, the reasons for re-opening the assessment

came to be provided. Petitioner appeared before the

respondent authority and also made oral as well as

written submissions raising several contentions and

specifically contending the assessment proceedings could

not be re-opened after 6 years and that too without any

justification and sought for dropping of the proceedings.

The contentions raised in the notice for re-opening came

to be reiterated and order dated 26.11.2018 came to be

passed which came to be communicated and received by

petitioner on 05.12.2018 and surprisingly, yet another

notice was served upon petitioner dated 06.12.2018

directing the petitioner to remain present for further

hearing on 12.12.2018 and conveyed that in no

circumstance, adjournment would be granted. Petitioner

accordingly, represented before the authority, but then,

was constrained to challenge the legality and validity of

the impugned notice dated 30.03.2018 as also the

impugned order dated 26.11.2018. In the preliminary

hearing which took place before the co-ordinate Bench of

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this Court, while issuing notice this Court has passed an

order on 12.12.2018 which reads as under :

"1. Mr. S.N. Soparkar, Senior Advocate, learned counsel with Mr. Abhishek Mehta, learned advocate for the petitioner invited the attention of the Court to the reasons recorded for reopening the assessment for the assessment year 2011-12, to submit that the Assessing Officer seeks to reopen the assessment of the petitioner in connection with purchase of the land bearing Block No.438 and 439 paiki 2 and Block No. 706 situated at Dumas. It was pointed out that, in the reasons recorded itself, the Assessing Officer has recorded that both the lands bearing Block No.438 and 439 paiki 2, have been purchased by M/s. R.P. Associates of which the petitioner was a partner. It was further pointed out that, insofar as the Block No. 706 at Dumas is concerned, the Assessing Officer has recorded that the petitioner's firm, M/s. A.R. Enterprise, has paid Rs.18 Crores (rounded off) out of the books, which can be treated as unaccounted investment of the petitioner's firm, M/s. A.R. Enterprise, for the financial year 2013-

14. It was submitted that, therefore, even according to the Assessing Officer land of Block No.438 and 439 paiki 2 had been purchased by M/s. R. P. Associates, and land bearing Block No. 706 at Dumas was purchased by M/s. A.R. Enterprise. It was submitted that when the purchases were made by the firm, the Assessing Officer is not justified in seeking to reopen the assessment of the petitioner. It was submitted that, on the reasons recorded, the Assessing Officer could not have formed the belief that income chargeable to tax as escaped assessment in the case of the petitioner.

2. Having regard to the submissions advanced by the learned advocate for the petitioner, issue NOTICE returnable on 29.1.2019. By way of ad-interim relief, the respondent may proceed further pursuant to the impugned notice; he, however, shall not pass the final order without the permission of this Court. Direct service is permitted today."

       REASONS         ASSIGNED               FOR    REOPENING





  C/SCA/22815/2019                             CAV JUDGMENT DATED: 02/01/2023




       ASSESSMENT

4. The reasons for re-opening the assessment was:

During the search proceedings conducted in the case of

Mr. Piyush G. Modi, vital documents were found and

seized and relevant information derived therefrom

disclosed that suada chitthi of land bearing Block Nos.

438, 439 paiki 2 dislcosed that said land was sold by Mr.

Ramesh P. Bhadani to the assessee, admeasuring 22870

square yards for a consideration of Rs.32,24,89,000/- and

the said sauda chitthi also disclosed that assessee held

ownership right in house No. 3 of Union Point, Ghoddod

Road, Surat, admeasuring 10000 square feet and the rate

of Rs.1,515 per feet was decided between assessee and

Mr. Ramesh P. Bhadani and thus, total price of the

property came to Rs.15,15,10,000/-. As per sauda chitthi,

assessee sold his property No. 3 to Mr. Ramesh P.

Bhadani in lieu of payment against the purchase of the

land of Block Nos. 438, 439 paiki 2, Dumas and the value

of the property of Ghoddod Road was separated from the

total of Rs.32,24,89,000/- and was decided that balance

C/SCA/22815/2019 CAV JUDGMENT DATED: 02/01/2023

amount of Rs. 17,09,79,000/- will be paid to Mr. Ramesh

P. Bhadani. The payment schedule was also indicated in

the sauda chitthi. During the assessment proceeding, the

Assessing Officer gathered that both the lands were

purchased by R.P. Associates in which the assessee was

one of the partners and House No. 3 was purchased by

M.B. System in which Mr. Ramesh P. Bhadani was one of

the partners.

5. It was also found that the assessee had made

payment in cash sum of Rs. 6,11,00,000/- on various dates

to Mr. Ramesh P. Bhadani for purchase of the land Block

Nos. 438 and 439 paiki 2. In fact, the statement of

assessee was recorded on 16.5.2014 whereunder

assessee admitted that unaccounted cash has been paid

for purchase of both the above lands and expressed his

opinion that for fear of payment of taxes, he did not state

correct amount of unaccounted cash paid. In this

background, the Assessing Officer was of the view that

said cash payment amounting to Rs.6,11,00,000/- by the

assessee in lieu of purchase of the said two lands

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remained unexplained.

6. During the search of the residence of Mr. Piyush

Modi, a sauda chitthi made between assessee as a seller

and Mr. Dilip C. Sojitra as purchaser was also found and

as a consequence of said search, a survey came to be

conducted at the office and factory premises of the

assessee. On being confronted with said sauda chitthi

(Annexure-A2) dated 23.10.2010, the assessee admitted

the same and identified the signature and explained that

land Block No.706, situated at Dumas, admeasuring

15972 square yards was decided to be sold to Mr. Dilip

Sojitra at the rate of Rs.10,602 per yard and admitted to

have received Rs.11,00,000/- as advance. He also

admitted that land pertains to navi sharat and agreed that

it cannot be sold without altering into juni sharat. He

stated that the deal was cancelled and once again the

assessee decided to sell his land at the rate of Rs.14,589

per square yard for which Rs.51,00,000/- was advanced

by Mr. Dilip Sojitra and stated that his firm M/s. A.R.

Enterprise owned the said land. Hence, the Assessing

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Officer was of the view that the land was purchased by

assessee in the name of A.R. Enterprise at an amount of

Rs.5,12,83,200/- and was being sold for Rs.23,30,15,508/-

and as such the purchase price of land cannot be relied

upon and was of the view that price of the same amount

cannot be less than that of price 2 years before. Hence,

he held that assuming that land has been purchased at an

amount of Rs.23,30,15,508/- and registration is made only

at jantri price decided by the government which is much

before actual sale transaction and was of the view that

difference amount will be paid by cash by the purchaser.

He was also of the view that in the sauda chitthi the

actual sale price of the land will be returned since it is an

informal document between purchaser and seller and

between period 2010 to 2013 the land prices in Surat had

increased substantially in Dumas area. Hence, the

Assessing Officer was of the view that firm A.R.

Enterprise of which assessee had partner, was paid

Rs.18,17,32,308/- out of books and same is to be treated

as unaccounted investment of assessee's firm A.R.

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Enterprise. As sauda chitthi dated 9.2.2011 disclosed that

a purchaser has to pay 25% of the total on-money amount

on 9.2.2011 and thereby unaccounted investment of the

assessess amounting to Rs.4,54,33,077/- (25% of

Rs.18,17,32,308/-) and thus for the aforesaid two reasons

which was based on the investigation report received

from DCIT, Central Office, Circle 2, Surat, the Assessing

Officer was of the view that assessee had paid on-money

in the form of cash in lieu of purchase of land bearing

Block Nos. 438 and 439 paiki 2 in the source of cash

remained unexplained and required to be added in total

income of the assessee and the statement dated

16.5.2014 given by the assessee whereunder he had

admitted to have made investment amounting to

Rs.5,54,33,077/- for purchase of the land Block No.706 at

Dumas which remained unexplained and required to be

added to the total income of the assessee and has to be

brought within the ambit of taxation and believing that

same had escaped assessment within the meaning of

Section 147 of the Act, notice came to be issued on the

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ground that transaction made by the assessee remained

unexplained and income chargeable to tax had escaped

income within the meaning of Section 147 of the Act and

as such sought for re-opening of the assessment. Since 4

years had lapsed from the end of the relevant assessment

year, sanction under Section 151(1) of the Act to issue

notice was obtained from the Principal Commissioner of

Income Tax and thereafter the proceedings have been

initiated and order passed rejecting the objection raised

by the assessee.

RE: SCA No. 22818 of 2019 and SCA No. 22815 of

7. For the Assessment Year 2012-13 and 2013-14,

assessee filed the return of income. Notice dated

30.3.2019 came to be issued by the authorities to assess /

re-assess the income / loss for the respective assessment

years and directed the petitioner to file his return of

income in the prescribed form. Pursuant to the same, the

return of income came to be filed and reiterated that

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original return of income filed be treated as one filed

pursuant to notice. Petitioner also sought for reasons for

re-opening of the assessment and thereafter respondent

No.3 by way of a letter dated 8.5.2019 provided the

reasons for re-opening which is similar and identical to

the reasons assigned for the Assessment Year 2011-12.

Hence, learned advocates appearing for the parties have

reiterated the contentions and pleas advanced in Special

Civil Application No.19274 of 2018 being similar and

identical to the present Special Civil Applications.

8. Later on, petition has come up for consideration

before this Court in which Mr. Saurabh Soparkar, learned

Senior Advocate assisted by Mr. Abhishek Mehta, has

represented the petitioner and Mr. Nikunt Raval, learned

advocate for Ms. Kalpana Raval, has represented the

contesting authority namely respondents 2 and 3.

9. Mr. Soparkar, learned Senior Advocate has

vehemently contended that first of all the very issuance of

impugned notice itself is unreasonable, high handed and

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arbitrary act of the respondent authority. Though full

disclosure in true sense, income tax return for

Assessment Year 2011-12 has been filed and though there

was no circumstance or justification, after a period of six

years, i.e. in the year 2018, the authority initiated the

stand of reopening of assessment on thoroughly

unjustified ground and there is no justification at all to

initiate proceedings under Section 142 of the Income Tax

Act. Mr. Soparkar, learned Senior Advocate has further

contended that it is evident that land being Survey Nos.

438 and 439 paiki has never been purchased by petitioner

and is purchased by one Mr. Jaswantbhai Mohanbhai

Patel as partner of M/s. R. P. Associates from the owners

of Survey Nos. 438 and 439 and the said transaction has

already been admitted in the accounts of the partnership

firm for the Assessment Year 2013-14, which is evident

from the copy of the income tax returns which are very

much supplied before the authority. The assertion of the

department that the constructed property i.e. House No.

3, Union Point, Ghoddod Road, Surat was given in

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exchange by the petitioner is also unbelievable, since

petitioner was never the owner of said property and as

such, there is no question of selling the said House or

bartering the same.

9.1 Mr. Soparkar, learned Senior Advocate has

submitted that there is no transaction on the part of

petitioner in the year under consideration i.e. 2011-12 for

which the petitioner can be said to have to any income for

which he is required to pay income tax. In fact, the said

property came to be purchased by M/s. R. P. Associates

for the Assessment Year 2013-14 and 'Sauda Chitthi' does

not justify any such transaction which still entitle

respondent no. 3 to reopen the assessment or reassess

the income tax return and there is no failure on the part

of petitioner to disclose any material fact for the

assessment year in question, the authority ought not to

have assumed the jurisdiction.

9.2 Mr. Soparkar, learned Senior Advocate has further

submitted that for Survey No. 706, wherein the entire

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transaction relied upon by the department is based on

'Sauda Chitthi' which is purportedly executed in the year

2010-11 that (i) the land never belong to petitioner, but it

is alleged that petitioner wanted to sell the land to one

Dilipbhai Sojitra for an amount of Rs.23,30,15,508/-, (ii)

that the land was purchased after almost two years by the

petitioner along with one M/s. A.R. Enterprise, one

partnership firm in the year 2013 i.e. on 28.10.2013 for

an amount of Rs.5,12,83,200/- and (iii) it cannot be said

that no transaction has taken place in this regard for the

year under consideration i.e. 2010-11 when the petitioner

in fact has purchased the said portion of land jointly with

M/s. A.R. Enterprise only in the year 2013 and

controversy appears to have been misconstrued by the

petitioner which has led to reopening of assessment and

further petitioner is till date the owner of said Survey No.

706 Dumas and there is no question of said 'Sauda

Chitthi' being executed in any year. Learned Senior

Advocate has further submitted that this was specifically

pointed out before the authority, but by ipse dixit manner,

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the authority has without proper application of mind,

initiated steps for reopening which is otherwise

impermissible. Since there is a clear lack of authority in

this background of fact to initiate proceedings for

reopening, this Court may kindly consider the same.

9.3 Mr. Soparkar, learned Senior Advocate has further

submitted that there is no material whatsoever to

substantiate the stand of the department which has been

created from the document/'Sauda Chitthi' recovered

from the premise of one Mr. Piyush Modi. Petitioner's

premise was also searched and no incriminating

document was found and no additional income was

declared by the petitioner and there was no material

found from petitioner's premise. To substantiate the said

'Sauda Chitthi' to arrive at a reason to believe that

income escaped the assessment and as such, even if

formulating such information about income having

escaped from assessment, there is no cogent material

whatsoever available with the authority. Hence,

authorities' action deserves to be quashed.

C/SCA/22815/2019 CAV JUDGMENT DATED: 02/01/2023

9.4 Learned Senior Advocate has further submitted that

reasons for reopening are prepared in mechanical

exercise on the basis of the information received from the

Assessing Officer of Shri Piyush Modi and Shri Dilip

Sojitra which also contained the following facts and said

facts herein would also not justify the reopening of the

assessment (i) in respect of land at survey nos. 438 and

439 Dumas, the reasons mentioned that both these lands

were purchased by R.P. Associates, but still case of Shri

Pawan Tulsiani i.e. the petitioner has been reopened, (ii)

in respect of land at survey no. 706 Dumas, the reasons

mentioned that even the land is owned by M/s. A.R.

Enterprise whereas, the said land was purchased only on

28.10.2013.

9.5 Hence, the information passed is also clearly

indicating that Shri Pawan Tulsiani i.e. the petitioner is

not the owner of survey nos. 438 and 439 Dumas,

whereas survey no. 706 Dumas, is still owned by M/s. A.R.

Enterprise and is not sold and in spite of such fact,

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respondent no. 3 has attempted to reopen the case of

petitioner by issuance of impugned notice. It has been

contended that respondent no. 3 is defending his action of

erroneous reopening in the hands of Shri Pawan Tulsiani

i.e. the petitioner instead of reopening the case of R.P.

Associates or passing on information to the Assessing

Officer of R.P. Associates since the last date of reopening

the case for Assessment Year 2011-12 was elapsed and as

such, by mere raising inference, proceedings appears to

have been initiated, which in the background of these

facts is thoroughly impermissible.

9.6 Learned Senior Advocate has vehemently contended

that for reopening of assessment under Section 147 of the

Income Tax Act the primary condition is that Assessing

Officer has 'reason to believe' that any income chargeable

to tax has escaped assessment for any Assessment Year,

then he may proceed. This primary basic condition should

be available. A perusal of the reasons recorded would

indicate that Assessing Officer did not have any reason to

believe that income chargeable to tax has escaped

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assessment for the year under consideration. For

formulating the belief the Assessing Officer must have

appropriate and cogent material and it cannot be on mere

unsupported belief or suspicion. According to learned

Senior Advocate before issuance of notice under Section

148 of the Income Tax Act, the aforesaid exercise is must

and necessary and same having not been established,

impugned notice as well as the order rejecting the

objections deserves to be quashed and set aside. Learned

Senior Advocate has submitted that since in view of

Section 149 of the Income Tax Act, reopening cannot be

commenced after expiration of six years period from end

of relevant Assessment Year by raising mere inference.

An attempt is made which in the background of facts

obtained is thoroughly impermissible. According to

learned Senior Advocate, there are several proposition of

law on the issue, which clearly indicate that there is

hardly any case made out to sustain the action. There is

no failure on the part of petitioner and there is no

justification adequate enough that there is no escapement

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of income due to failure on the part of petitioner to

disclose. If this be missing, the very initiation of

proceedings deserves to be quashed and the entire

exercise appears to have been undertaken without proper

application of mind and thereby affecting fundamental

right of petitioner. Petitioner left with no other efficacious

remedy is constrained to approach this Court.

9.7 Learned Senior Advocate has submitted that by such

arbitrary action, petitioner is sought to be saddled with

huge amount on assessment to the tune of Rs.10 crores

which is not substantiated from any material. Hence, in

the background of these facts, the proceedings of

reopening being without authority of law may be

quashed. The aforesaid eventualities are clearly projected

even at the time of issuance of notice, this Court was

pleased to extend ad-interim relief by directing the

authority not to pass final order without permission of the

Court.

9.8 Learned Senior Advocate has relied upon few

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decisions to strengthen his submission. A reference is

made to a decision in the case of Commissioner of

Income Tax v. Balbir Singh Maini reported in [2017]

398 ITR 351 (SC) (paragraph 17) and by referring to

this decision, it has been contended that condition

precedent is that there must be income escapement

which is not in the present case. Learned Senior Advocate

has also made a reference to two further decisions (i) In

the case of Ami Ashish Shah v. Income Tax Officer

reported in [2021] 126 Taxmann.com 236 (Gujarat)

(paragraph 27 and 28), (ii) In the case of Vinodbhai

Samjibhai Ravani v. Deputy Commissioner of

Income Tax rendered in Special Civil Application No.

21691 of 2016 with Special Civil Application 21741 of

2016 dated 15.02.2017 (paragraph 3, 3.5 and 7.1) and

relying upon these decisions, a contention is raised that

action sought to be initiated against petitioner is

absolutely impermissible. It has been contended that both

these transactions even if are of the firm, as how

petitioner can be dealt with is not forthcoming. Learned

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Senior Advocate has submitted that during the process, it

appears that two 'Sauda Chitthi' with respect to Survey

nos. 706 Dumas appears to have been referred i.e.

23.03.2010 and 09.02.2011, but both the attempts were

to sell and not to buy and as such the authority has

misconstrued the entire circumstance and thereby,

sought to reopen the assessment. Learned Senior

Advocate has submitted that every circumstance was

explained in detail, but respondent authority has not

examined the same and passed an order which is

unsustainable. Hence, the relief prayed for deserves to be

granted.

10. As against this, Mr. Nikunt Raval, learned advocate

appearing on behalf of the Revenue authority has

vehemently opposed the petition and has contended at

this stage reopening of assessment the authority should

be permitted to reopen the assessment instead of

intercepting and if allowed to proceed ahead petitioner

will not be remediless. It has been contended that while

examining the explanation the authority has found some

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material about shadow transaction and adequate reasons

to formulate the belief of reopening of assessment and as

such, at this stage of the proceedings, the authority

deserves to be allowed to adjudicate and examine and

then to arrive at ultimate conclusion. It has been

contended that it is not correct on the part of petitioner

counsel to indicate that reopening is impermissible in

law. In fact, the authority is adequately empowered to

examine the issue. When such belief about income having

escaped is established, and here is a case in which

conjoint effect of material and the explanation, the

authority has rightly rejected the stand of the petitioner

and passed an order dated 26.11.2018. Hence, petitioner

at this stage may not be allowed to interject the

proceedings which are sought to be processed. Mr. Raval,

learned advocate has referred to a decision in the case of

Heval Navinbhai Patel v. Income Tax Officer reported in

[2021] 126 Taxmann.com 82 (Gujarat) (paragraph 25

(viii) and (xvii)). By referring to few observations

contained in the said decision, a contention is raised that

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authority is thoroughly justified in initiating the

proceedings for reopening of assessment.

11. As against this, in rejoinder, learned Senior

Advocate for petitioner by reiterating the stand has

further made a reference to few decisions to canvass his

submission that reopening is impermissible in the

background of present facts and said decisions are (i) In

the case of Gujarat Flurochemicals Ltd. v. Deputy

Commissioner of Income Tax reported in [2009] 319 ITR

282 (Guj) (paragraph 10) (ii) In the case of Aayojan

Developers v. Income Tax Officer reported in [2011] 335

ITR 234 (Guj) (paragraph 8) (iii) In the case of Ashwin

Khimchand Jhakaria v, DDIT International Taxation

rendered in Special Civil Application 1896 of 2014 dated

21-22/04.2014 and by referring to these decisions, has

contended that the petition deserves to be considered by

granting relief as prayed for. No other submissions have

been made.

DISCUSSION AND FINDINGS:

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12. Quite often challenge is laid to the notice issued by

the Revenue under Section 148 of the Act and it is

noticed by this Court that such petitions are admitted and

in some cases stay of further proceedings pursuant to

such notice is issued whereby there is no progress in the

re-assessment proceeding. The conflict between the

assessee and the Revenue for re-opening has been the

subject matter of challenge before the constitutional

courts by invoking the extraordinary jurisdiction under

Article 226 of the Constitution of India read with Article

227 (supervisory jurisdiction). It is trite law that

extraordinary jurisdiction is to be sparingly used and until

and unless writ applicant is able to establish that either a

constitutional right has been infringed or there has been

violation of principles of natural justice or there being

challenge to the vires of the Act or the Rules, this Court

would refrain from exercising the extraordinary

jurisdiction. It would be apt and appropriate to notice

that where a challenge is laid to the re-opening of the

assessment, such matters are required to be taken up by

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this Court on priority basis and disposed of at the

threshold instead of keeping the said matters pending

and/or allowing it to be languishing before this Court for

years to come and thereby resulting in prejudice to both

the parties. We say so, for the reason that in the event of

assessee's contention being upheld the re-assessment

sought to be commenced would come to an end, of

course, subject to the further challenge by the Revenue if

they chose to do so. Whereas, if the contention of the

assessee is not accepted or in other words, challenge laid

to re-opening fails, in such circumstances, if the writ

application is kept pending for years or allowed to

languish before this Court by granting stay of re-opening

of assessment and thereby stalling the proceedings

before the authorities, it would not only result in piling up

of the cases before this Court but it would also stall the

re-assessment proceedings which otherwise would have

come to an end long back and parties to such proceedings

would have been in a position to re-take recourse to the

alternate remedy available under law viz. by questioning

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the order of assessment by filing an appeal before the

appellate forum in the manner prescribed under the Act.

13. It also requires to be noticed that an attempt is

always made by the assessee to assail the notice of re-

assessment on the ground of there being no tangible

material to form a belief that the income chargeable to

tax has escaped the assessment; there is no material

having any live link for formation of such belief; the

return of income was originally accepted, re-opening of

the assessment would not be permissible; the re-

assessment proceedings cannot be initiated on borrowed

opinion or view; the Assessing Officer cannot improve

upon the reasons assigned; barred by limitation. Whereas

Revenue would contend that re-opening of the

assessment is challenged at the drop of the hat and

attempts are made to call upon the constitutional court to

go into facts of the case and alternate remedy of filing an

appeal is always available to such assessee once the

order of re-assessment is made and only in extraordinary

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circumstances, writ court would exercise the

extraordinary jurisdiction to interfere with the re-opening

of the assessment and at the stage of re-opening of the

assessment, the Court will have to look into or examine as

to whether the reasonable belief for re-opening the

assessment formed by the authorities would be justifiable

without going into merits of the case and as such, they

would seek for dismissal of such petitions or rejection of

the contentions when challenge is laid to the

commencement of re-assessment proceedings. Section

148 of the Act enables the authority to issue a notice

where income has escaped assessment viz. before making

the assessment, re-assessment or re-computation under

Section 147; the Assessing Officer is required to issue

notice to the assessee along with copy of the order

passed. The Hon'ble Apex Court in the case of GKN

Driveshafts (India) Ltd. vs. ITO, [2003] 259 ITR 19 (SC)

has held that when a notice under Section 148 is issued,

the proper course of action for the noticee is to file a

return and if he so desires, seek reasons for issuing the

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notice and the Assessing Officer would be bound to

furnish reasons within a reasonable time. It is further

held that on receipt of reasons, the noticee is entitled to

file objections to issuance of said notice of reopening and

the Assessing Officer would be bound to dispose of the

same by passing a speaking order.

14. The expression 'reason to believe' which was

occurring in Section 147 of the Act prior to the

substitution of the said provision has received the

attention of the Hon'ble Apex Court in the case of

Assistant Commissioner of Income-tax vs. Rajesh Jhaveri

Stock Brokers (P) Ltd., [2007] 161 Taxman 316 (SC) and

it has been held:

"17. The scope and effect of section 147 as substituted with effect from April 1, 1989, as also sections 148 to 152 are substantially different from the provisions as they stood prior to such substitution. Under the old provisions of section 147, separate clauses (a) and (b) laid down the circumstances under which income escaping assessment for the past assessment years could be assessed or reassessed. To confer jurisdiction under section 147(a) two conditions were required to be satisfied firstly the Assessing Officer must have reason to believe that income profits or gains chargeable to income tax have escaped

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assessment, and secondly he must also have reason to believe that such escapement has occurred by reason of either (i) omission or failure on the part of the assessee to disclose fully or truly all material facts necessary for his assessment of that year. Both these conditions were conditions precedent to be satisfied before the Assessing Officer could have jurisdiction to issue notice under section 148 read with section 147(a) But under the substituted section 147 existence of only the first condition suffices. In other words if the Assessing Officer for whatever reason has reason to believe that income has escaped assessment it confers jurisdiction to reopen the assessment. It is however to be noted that both the conditions must be fulfilled if the case falls within the ambit of the proviso to section 147. The case at hand is covered by the main provision and not the proviso.

18. So long as the ingredients of section 147 are fulfilled, the Assessing Officer is free to initiate proceeding under section 147 and failure to take steps under section 143(3) will not render the Assessing Officer powerless to initiate reassessment proceedings even when intimation under section 143(1) had been issued."

15. Likewise, the distinction between a return of income

filed by the assessee when accepted under Section 143(1)

of the Act without scrutiny would stand on a different

footing than a return of income proceed under Section

143(3) of the Act and this issue has also been laid to rest

by the Hon'ble Apex Court in Rajesh Jhaveri's case

referred to supra by opining that where the return of

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income filed by assessee is accepted under Section 143(1)

of the Act without scrutiny, the Assessing Officer would

not have formed any opinion and the principle of change

of opinion would not apply. It has been further held that:

"13. One thing further to be noticed is that intimation under section 143(1)(a) is given without prejudice to the provisions of section 143(2). Though technically the intimation issued was deemed to be a demand notice issued under section 156, that did not per se preclude the right of the Assessing Officer to proceed under section 143(2). That right is preserved and is not taken away. Between the period from April 1, 1989 to March 31, 1998, the second proviso to section 143(1)(a), required that where adjustments were made under the first proviso to section 143(1)(a), an intimation had to be sent to the assessee notwithstanding that no tax or refund was due from him after making such adjustments. With effect from April 1, 1998, the second proviso to section 143(1)(a) was substituted by the Finance Act, 1997, which was operative till June 1, 1999. The requirement was that an intimation was to be sent to the assessee whether or not any adjustment had been made under the first proviso to section 143(1) and notwithstanding that no tax or interest was found due from the assessee concerned.

Between April 1, 1998 and May 31, 1999, sending of an intimation under section 143(1)(a) was mandatory. Thus, the legislative intent is very clear from the use of the word intimation as substituted for assessment that two different concepts emerged. While making an assessment, the Assessing Officer is free to make any addition after grant of opportunity to the assessee. By making adjustments under the first proviso to section 143(1)(a), no addition which is impermissible by the information given in the return could be made

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by the Assessing Officer. The reason is that under section 143(1)(a) no opportunity is granted to the assessee and the Assessing Officer proceeds on his opinion on the basis of the return filed by the assessee. The very fact that no opportunity of being heard is given under section 143(1)(a) indicates that the Assessing Officer has to proceed accepting the return and making the permissible adjustments only. As a result of insertion of the Explanation to section 143 by the Finance (No. 2) Act of 1991 with effect from October 1, 1991, and subsequently with effect from June 1, 1994, by the Finance Act, 1994, and ultimately omitted with effect from June 1, 1999, by the Explanation as introduced by the Finance (No. 2) Act of 1991 an intimation sent to the assessee under section 143(1)(a) was deemed to be an order for the purposes of section 246 between June 1, 1994, to May 31, 1999, and under section 264 between October 1, 1991, and May 31, 1999. It is to be noted that the expressions intimation and assessment order have been used at different places. The contextual difference between the two expressions has to be understood in the context the expressions are used. Assessment is used as meaning sometimes the computation of income, sometimes the determination of the amount of tax payable and sometimes the whole procedure laid down in the Act for imposing liability upon the tax payer. In the scheme of things, as noted above, the intimation under section 143(1)(a) cannot be treated to be an order of assessment. The distinction is also well brought out by the statutory provisions as they stood at different points of time. Under section 143(l)(a) as it stood prior to April 1, 1989, the Assessing Officer had to pass an assessment order if he decided to accept the return, but under the amended provision, the requirement of passing of an assessment order has been dispensed with and instead an intimation is required to be sent. Various circulars sent by the Central Board of Direct Taxes spell out the intent of the Legislature, i.e., to minimize the

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departmental work to scrutinize each and every return and to concentrate on selective scrutiny of returns. These aspects were highlighted by one of us (D. K. Jain J) in Apogee International Limited v. Union of India [(1996) 220 ITR 248]. It may be noted above that under the first proviso to the newly substituted section 143(1), with effect from June 1, 1999, except as provided in the provision itself, the acknowledgment of the return shall be deemed to be an intimation under section 143(1) where (a) either no sum is payable by the assessee, or (b) no refund is due to him. It is significant that the acknowledgment is not done by any Assessing Officer, but mostly by ministerial staff. Can it be said that any assessment is done by them? The reply is an emphatic no. The intimation under section 143(1)(a) was deemed to be a notice of demand under section 156, for the apparent purpose of making machinery provisions relating to recovery of tax applicable. By such application only recovery indicated to be payable in the intimation became permissible. And nothing more can be inferred from the deeming provision. Therefore, there being no assessment under section 143(1)(a), the question of change of opinion, as contended, does not arise."

16. The aforesaid proposition of law has been reiterated

by the Hon'ble Apex Court in the case of Deputy

Commissioner of Income- Tax & Anr. vs. Zuari Estate

Development & Investment Company Limited, reported in

[2015] 373 ITR 661 [SC]. At the time of commencement

of the re-assessment proceedings, the Assessing Officer

has to see whether there is prima facie material, on the

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basis of which, the department would be justified in

reopening the case. The sufficiency or correctness of the

material would not be the subject matter of consideration

at that stage. The Hon'ble Apex Court in the case of

Raymond Woollen Mills Ltd. v. ITO (236) ITR 34 (SC) has

held:

"In this case, we do not have to give a final decision as to whether there is suppression of material facts by the assessee or not. We have only to see whether there was prima facie some material on the basis of which the Department could reopen the case. The sufficiency or correctness of the material is not a thing to be considered at this stage. We are of the view that the court cannot strike down the reopening of the case in the facts of this case. It will be open to the assessee to prove that the assumption of facts made in the notice was erroneous. The assessee may also prove that no new facts came to the knowledge of the Incometax Officer after completion of the assessment proceeding. We are not expressing any opinion on the merits of the case. The questions of fact and law are left open to be investigated and decided by the assessing authority. The appellant will be entitled to take all the points before the assessing authority. The appeals are dismissed. There will be no order as to costs."

17. A validity of the re-opening of the assessment will

have to be determined with reference to the reasons

recorded for re-opening of the assessment. But the

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Assessing Officer would confine to the recorded reasons

for assuming the jurisdiction in order to support the re-

opening. To put it differently, the requirement under the

law for re-opening and assessment is application of mind

by the Assessing Officer to the material produced prior to

the re-opening of the assessment; to conclude that he has

reason to believe that the income has escaped

assessment. In other words, the income which has

escaped assessment, the material on which such

assessment or re-assessment is being made, not being

available at the earlier stage would be the live link for

such re-assessment. The tangible material which forms

the basis for the belief that income has escaped

assessment if evident from reading of the reasons, it

would suffice to sustain such re-opening of the

assessment. Correctness or otherwise of the tangible

material and its evaluation cannot be gone into by this

Court in exercise of jurisdiction under Article 226 or 227

of the Constitution of India.

18. The expression 'reason to believe' then occurring in

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Section 147 cannot be interpreted to mean the Assessing

Officer is having absolute power to re-open the

assessment of such income declared in the return of

income having escaped the assessment. It is in this

background the aforesaid expression 'reason to believe'

assumes significance inasmuch as change of opinion

cannot be the basis or per se reason to re-open the

assessment already made. In order to assume jurisdiction

under Section 147 where assessment has been made

under Section 143(3) the twin conditions to be satisfied is

(a) the Assessing Officer must have reason to believe that

the income chargeable to tax has escaped assessment;

and (b) such escapement occurred by reason of failure on

the part of the assessee either (i) to make a return of

income under Section 139 or in response to the notice

issued under sub-section (1) of Section 142 or Section

148 or (ii) to disclose fully and truly all the material facts

necessary for his assessment for that purpose.

19. In other words, the Assessing Officer has to arrive at

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a subjective satisfaction independently on an objective

evaluation of the material by independent application of

mind. The concept of 'change of opinion' has been held by

the Hon'ble Apex Court in Commissioner of Income Tax,

Delhi vs. Kelvinator of India Ltd. [2010] 210 ITR 561 as

an inbuilt test to check abuse of power by the Assessing

Officer.

20. Where fresh facts are revealed as the basis for re-

opening of the assessment / re-assessment by issuance of

notice under Section 148 per se cannot be held to be a

ground to set aside the same on the ground of there being

a change of opinion if the Revenue is able to demonstrate

that on the basis of there being such material which has

emanated subsequent to the assessment or inquiry

reveal, the material facts were suppressed or not

disclosed fully at the time of framing of the assessment

would be a good and sufficient ground for re-opening of

the assessment. In other words, if the material facts

which form the basis for re-opening of the assessment not

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being available at the time of framing of the assessment

would suffice for re-opening the assessment and the

sufficiency of such material cannot be gone into at the

stage of examining the validity of the notice issued for

recovery, as otherwise the purpose of such re-opening

would be erased.

21. The issue regarding maintainability of the petition

has also been laid to rest by this Court in the matter of

Vishwanath Engineers vs. Assistant Commissioner of

Income-tax [2013] 252 ITR 54 : [2012] 21 taxmann.com 5

(Gujarat) whereunder it came to be held that if a litigant

has concurrent remedies against the order, it can avail of

the both without prejudice to his rights and contentions

made therein unless there is a specific bar created by

statute in the matter of availing both the remedies. It has

been further held:

"11. It is now settled law that if a litigant has concurrent remedies against the selfsame order, it can avail of the both without prejudice to his rights and contentions made therein unless there is a specific bar created by statute in the matter of availing both the remedies. For instance, under the Code of Civil Procedure, against a judgment and decree, a party can

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file an application for review before the selfsame court on limited grounds and also file regular appeal before the higher forum the scope of which is much wider. However, the law provides that once the appeal is filed, thereafter, the application for review cannot be filed, whereas during the pendency of the application for review, if the appeal is subsequently filed, for that reason, the review application filed before filing of the appeal does not become infructuous. However, if the appeal is disposed of on merit before disposal of the application for review, the application for review will become infructuous.

12. Similarly, against an exparte decree, an aggrieved defendant can prefer both regular appeal under Section 96 and an application for setting aside exparte decree by taking recourse to Order 9 Rule 13 of the Code of Civil Procedure apart from his remedy of review. However, if the appeal is disposed of on merit where even the grounds accessible under Section 114 or Order 9 Rule 13 are also available by taking aid of Section 105, the pending applications for review or for setting aside exparte decree would become infructuous. (See Bhanu Kumar Jain v. Archana Kumar and another reported in AIR 2005 SC 626 for detail discussion).

13. Therefore, in the case before us, the petitioner filed the present application under Article 226 of the Constitution on the allegation that he is entitled to the benefit of law laid down by the Supreme Court in case of CALCUTTA DISCOUNT COMPANY LTD. V. I.T.O., reported in 41 ITR 191. The petitioner has also challenged the consequent order of reassessment on the ground of violation of law laid down by the Supreme Court in the case of GKN Driveshafts [India] Ltd. [supra]."

22. As already noticed hereinabove, the exercise of

jurisdiction is available where the applicant / petitioner

would assail the action of the authorities under four

contingencies viz. when the said action is (i) without

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jurisdiction; (ii) in violation of principles of natural

justice; (ii) the authority exercising jurisdiction is without

such power and validity or vires of a statutory provision is

challenged. This view also gets forfeited by the law laid

down by the Hon'ble Apex Court in the case of Whirlpool

Corporation vs. Registry Trade Marks, Mumbai and

others, [(1998) 8 SCC 1] and in the matter of T.T. Pvt.

Ltd. vs. ITO, Circle III, Bangalore [1980] 121 ITR 551

whereunder it has been held that availability of alternate

remedy would not be a bar for the constitutional court to

examine the notice issued under Section 148 of the I.T.

Act, 1961 if it is challenged on the ground of

jurisdictional error. However, exercise of such power

would be rare or to put it differently when the reason

assigned for re-opening of the assessment is challenged

as being contrary to the facts, the correctness of such

reason would not be gone into, inasmuch as it is likely to

prejudice the rights of the parties in the proceedings that

may eventually take place in the event of such challenge

failing. As such it would be safe and appropriate at that

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juncture to arrive at a conclusion of not proceeding to

examine the merits of the reason assigned for re-opening

of the assessment or re-assessment.

23. Petitioner has challenged the impugned order as

well as notice of reopening on the ground that same are

highhanded arbitrary, capricious and impermissible,

respondent No.3 authority had no justification to initiate

proceeding under Section 142 of the Income Tax Act

while passing impugned order dated 26.11.2018 and has

contended further that land bearing Survey Nos.438 and

439 Paiki-2 has never been purchased by petitioner, but

is purchased by Mr. Jashwantbhai Mohanbhai Patel as a

partner of M/s. R.P. Associates from owners of the

aforesaid survey numbers and said transaction has been

effected in the account of partnership for the assessment

year 2013-14 and has further submitted that with respect

to Sauda-chitthi, as has been relied upon can never be

utilized for initiating impugned action and there is no

failure on the part of petitioner to disclose any material

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fact for assessment. Petitioner till date is owner of the

land bearing Survey No.706 Dumas and as such there is

no question of Sauda-chitthi being executed in any year.

For the purpose of reopening the assessment, according

to petitioner, no imaginary conclusion can be arrived at

by an authority. Simply because, Sauda-chitthis were

recovered from the premises of one Mr. Piyush Modi and

from petitioner's premises, no incriminating documents

were found, as such no additional income was declared by

petitioner. Reopening appears to have been prepared on

the basis of information received from assessing officer of

Shri Piyush Modi and Mr. Dilip Sojitra and as such, by

raising such factual controversy also, action is assailed by

way of invoking extraordinary jurisdiction of this Court.

24. Now to deal with such background which is tried to

be projected by petitioner, a perusal of discretion

exercised by respondent authority deserves to be

relooked. The authority while disposing of the objections

against reopening of the assessment under Section 147 of

the Income Tax Act has examined at great length the

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stand of the petitioner and has also examined not only the

Sauda-chitthi but also certain admissions and statements

made by petitioner as well as incidental material and only

upon such critical analysis of the material on record,

jurisdiction is exercised as has been vested in law.

25. It appears that since action of reopening is sought to

be initiated after a lapse of 4 years, as required, a specific

sanction from the Principal CIT, Surat-1 has been issued

and only thereafter, impugned notice came to be issued

and as such, notice which has been issued is by the

competent authority and after obtaining necessary

sanction and as such, it does not appear that impugned

notice is without authority of law in any form. Be that as

it may. The order disposing of objections deserves

relevant consideration. Said order has been passed in

consonance with proper guidelines as laid down by

Hon'ble High Court in the case of Sahkari Khand Udyog

Mandali Ltd., as has been mentioned in the order. That

apart, entire exercise has been undertaken on account of

relevant documents having been seized from the

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residence of Mr. Piyush Modi during search and survey

proceeding and from residence of Shri Modi documents

pertaining to initiation of purchase of property in

question, i.e. Survey Nos.438 and 439/2 by Ramesh

Bhadani as well as its subsequent sale to assesseee, i.e.

present petitioner, were seized and investigating team

had made a detailed search and inquiries and after

recording relevant statements of persons during search

proceedings, crucial information having been unearthed,

on account of which steps were contemplated against the

petitioner. On the basis of such material, authority has

arrived at a conclusion that there was lapse on the part of

the petitioner in disclosing the relevant particulars and

certain issues were not allowed to be unearthed and same

having come to its notice, steps have been in

contemplated to reopen the account by way of impugned

notice and order.

26. At this stage, post search inquiry and seized material

has revealed certain circumstances which has

constrained the authority to initiate steps against the

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petitioner and while arriving at a conclusion that Sauda-

chitthi was never cancelled and it has been found from

the premises of Shri Ramesh Bhadani, as one of the

grounds for reopening. Said conclusion is based upon

thorough analysis of the material and we found from the

order itself that even petitioner has also admitted in his

statement that unaccounted cash has been paid for the

purchase of both the above said plots but was not

disclosed on account of fear of consequences and has also

submitted that he would reveal after consultation with

other partners. During course of recording of statement,

even Mr. Ramesh Bhadani has also admitted certain

amounts as reflecting in the order about transaction in

question. Mr. Pavan Tulsiani- petitioner was cross-

examined during the course of survey proceeding and he

specifically admitted about the cash transaction during

sale of land but did not disclose the exact cash amount

paid by him to Mr. Ramesh Bhadani and as such it was

very much found clearly by an authority that petitioner

being a leading person did purchase both the plots

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bearing Block/ Survey Nos.438 and 439/2, said land

transaction deal was finalized as per the terms and

conditions specified in the Sauda-chitthi for both the

lands and each conditions including payment schedule

have also been fulfilled by the purchaser and seller of the

land. MoU as well as Sauda-chitthi seized, as referred to

in the order itself, were clearly matching with the

registered document and main person of the firm is the

petitioner himself as has been revealed. This examination

if to be looked into, unexplained investment by petitioner

which relates to another land at 706 Dumas is also

examined at length and there also, petitioner himself has

accepted contents of Sauda-chitthi during post-search

proceedings and when that be so, it is not possible for us

at this initial stage to exercise our extraordinary

jurisdiction by intercepting the process of respondent

authority for reopening the assessment.

27. It is a trite law that if the facts are in serious dispute

and if same are clouded by some suspicion, same has to

be left open for appropriate competent authority to

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examine at length and extraordinary jurisdiction cannot

be exercised to usurp such discretion of the competent

authority from being adjudicated upon. Keeping this

salutary principle in mind, we deem it proper to

incorporate hereunder paragraph 3.3, detailed analysis of

an authority of the material on record and further we may

emphasis that in view of the categorical analysis

undertaken by an authority, though we may not quote

entire conclusion hereunder, but having gone through the

same even from paragraph 4 of the order, we find that

this is not a fit case to exercise extraordinary jurisdiction

to intercept the respondent authority from proceeding

ahead:-

"3.3 Analysis of the seized material and the findings of the post search enquiries.

From the above details of sauda chithi, it is clear that the Ramesh R: Bhadani has sold the land to Pawan Tulsiani total amount for Rs.32,24,89,000/-. The unaccountable transactions were recorded in the above sauda chithi, so Ramesh R. Bhadam is not disclosing actual fact regarding transactions in respect of th36 land. He is trying to mislead the department by saying that the sauda chithi has been cancelled but when he was asked that whether you have any cancellation deed of sauda chithi. In reply, he stated that he does not have any cancelled sauda chithi.

Further, during the course of search, no cancelled sauda chithi has been found from the premises of

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Ramesh R. Bhadani or any other places. If the sauda chithi has been cancelled, then it must have been found during the course of search along with the huge unaccounted transactions related documents. Ramesh R. Bhadani is stating the incorrect fact about the cancellation of the above sauda chithi only to evade the tax liability of himself and to save the purchaser of the land Pawan K. Tulsiani.

Had this sauda chithi been cancelled then property of House No.3, Union Point, Ghod Dod Road, Surat would not been registered in the name of MB Systems (connected to Shri Ramesh R. Bhadani). During the course of investigation it was noticed that the House No.3, Union Point, Ghod Dod Road, Surat was constructed by Sumangal Corporation and Sunil J. Shah was one of the partner in this firm. The details such as purchase deed in this regard was called for from M/s. Sumangal Corporation. Only two purchase deeds for these properties admeasuring area of 221.28 sq. mtrs super built-up situated at ground floor and 221.28 sq mtrs super built-up situated at first floor were furnished by M/s. Sumangal Corporation to the Investigation Wing These properties have been purchased by MB Systems at a cost of Rs.83,66,125/- and Rs.75,03,200/- respectively.

Further, on perusal of the registered document no.SRT/ 1/ATV/6651 and SRT/1/ATV/6656 dated 25.04.2012 and 27.04.2012, it has been noticed that MB Systems (Ramesh R. Bhadani) had purchased the property House No.3, Union Point, Ghod Dod Road, Surat directly from the Sumangal Corporation, whereas, Pawan Tulsiani has signed in the sauda chithi in the capacity of seller for selling the same property. As per the document of the property Sunil J. Shah was the owner of the property. So it is quite clear that Sunil J. Shah had sold the property to Pawan Tulsiant without registering the document, and the same property has been sold out by Pawan Tulsiani to Ramesh R. Bhadani.

Thus the transactions made between Sumangal Corporation (Sunil J. Shah) and Pawan Tulsiani was not recorded in their regular books. It is not possible to sell the property without being the owner of the same. Pawan Tulsiani has sold the property of Union Point for an amount of Rs.15,15,10,000/-. Hence, an amount of

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Rs. 15,15,10,000/- in form of Hawala is nothing but unaccounted expenditure for purchasing of land at Block No.438, 439/Paiki 2. Because Pawan Tulsiani, being owner of the property of House No.3, Union Point, Ghod Dod Road, Surat, instructed M/s.Sumangal Corporation and some other persons may be to make the document and get registered in favor of MB Systems (Ramesh R. Bhadani).

With an intention to know the true fact about the transaction made by Pawan Tulsiani for the land Block No.438, 439/Paiki 2, At Dumas, a survey action was conducted on Factory Premise at 1/138-142 and at Administrative office at 402, Meridian Tower, Udhna Darwaja, Surat of Pawan K. Tulsiani.

During the course of survey proceedings, a statement of Shri Pawan K. Tulsiani, was recorded u/s.131 of the Act. The same sauda chithi at Page No.20 of Annexure A-1 was shown to him during the course of proceedings. On perusal of the indenture contained in sauda chithi. Pawan Tulsiani stated that the facts mentioned in the sauda chithi are true, but he has not signed in the sauda chithi. The signature appearing in the sauda chithi is not done by him. He also stated that his signature has been done by one of his partner, Paresh M. Mavani on behalf of him after confirmation with him on telephone. However he confirmed that the indenture of the sauda chhithi and details of transactions have been conveyed to him on telephone, which were duly confirmed by him. Thus, he admitted that he was well aware about entire deal and the same was finalized after taking his consent on telephone. Since, Pawan Tulsiani was not available in Surat, so his signature was done his partner. As Pawan Tulsiani was claiming that he was out of Surat at the time of preparation of sauda chithi so he was asked to produce the evidence regarding his claim to be out of station. But he could not produce such type of evidence for his claim during the entire survey proceedings. He was further questioned that have you seen the sauda chithi after coming back to Surat. He stated that Yes, he has seen the sauda chithi. At last question in respect of the purchase of the land at Block No.438, 439/Paiki- 2 was asked to Pawan Tulsiani. He confirmed the purchase of the land, and he stated that both the lands

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ie Block No.438, 439/Paiki 2 at Dumas was purchased by him along with his partners Jaswant M. Patel, Paresh M. Mavani and Rajendra Panwala. He also cleared that document of the land at Block No.438 was registered in the name of Jaswant M. Patel and Block No.439/2, was in the name of Jaswant Patel and Paresh Mavjibhai Mavani since he is not a farmer of Gujarat and therefore he cannot buy the agricultural land in Gujarat. Both the above persons, Jaswant M.Patel and Paresh M. Mavani are farmers in Gujarat and therefore the registered sale deed of both the above land were made in their names. He also stated that the document for the land at Block No.438 was registered in the month of March 2012 in the name of Jaswant M. Patel and he doesn't know the time period of the registration of other block at 439/2. It was further stated by him that both the pieces of land were purchased in the name of Jaswant Patel and Paresh Mavani but they are not the actual owners of the land. The above land was purchased in their name only to avoid the legal hurdle that only a farmer can purchase agricultural land in Gujarat.

Thus, after conducting the survey proceedings, it was clear that the details mentioned in the sauda chithi dated 28.7.2011 were 100% correct and both the above lands were purchased by Pawan K. Tulsiani from Ramesh R. Bhadani. But, the purchase deeds were executed in the name of shadow persons who were having only 2.5% share each on the above land due to the legal hurdle. The land at Block No.438 was purchased from Ramesh R. Bhadani vide sale deed No.8377 dated 30.5.2012 and land at Block No.439/2 was purchased directly from the original land owner Vinod M. Lavri as per the Memorandum dated 30.5.2012 which have been discussed earlier. Thus, there is no confusion about the sale of both the land by Ramesh R. Bhadani to Pawan K. Tulsiani. As per the memorandum Vinodbhai Lavri had decided to sell the agricultural land Block No.439/ Paiki 2, situated at Dumas to Ramesh R. Bhadani. But, document of the same land was not registered in the favor of Ramesh R. Bhadani. So Ramesh R. Bhadani has directed Vindobhai Lavri, who was actual owner of the land to register the document of the land on behalf of Pawan K. Tulsiani.

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Further, Pawan Tulsiani was asked about the transaction which were written on sauda chithi of the land Block No. 438, 439 / Paiki 2, situated at Dumas. As per the above sauda chithi, both the land having admeasuring area 22870 sq. yards were sold to him at the rate of Rs. 14,101/- per sq. yard. Thus, the deal of the land was finalized for total amount of Rs. 32,24,89,870/-, whereas the purchase deeds of both the above lands had been registered for an amount of Rs.3,24,14,400/-vide sale deed No8377 dated 30.5.2012 for land at Block No.438, Dumas and Rs 3,57,00,000/- vide sale deed No.8376 dated 30.5.2012. for land at Block No.439/2, Dumas. Hence it is clear that the differential amount of Rs. 25,43,75,470/- (Rs. 32,24,89,870 Rs. 6,81,14,400) was paid in cash in the form of on money. The relevant part of statement recorded given are as under:

PARAGRAPHS ARE IN HINDI

On perusal of the Annexure-A/21, page No. 3, it is noticed that Pawan Tulsiani has made payment in cash of Rs.6,11,00,000/- on various dates to Ramesh R. Bhadani for purchase of land at Block No. 438 and 439 / 2, Dumus:

              10.1.2011      Rs. 11,00,000
              13.1.2011      Rs.3,00,00,000
              13.1.2011      Rs.3,00,00,000
                             ____________
                             Rs.6,11,00,000

Here, it is clear that Pawan K. Tulsiani had admitted in his statement that the unaccounted cash has been paid for purchase of both the above land but with the fear of payment of taxes he did not state the correct amount of the unaccounted cash paid. He has promised that after consultation with his partners he will state the correct amount before the undersigned on 19.5.2014, but later on he did not turn up to state the correct fact

During the course of recording the statement in post search proceedings Ramesh R. Bhadani has admitted that he has received an amount to the tune of Rs.8,08,76,700/- in cash in form of on money in lieu of sale of land at Block No.438 situated at Dumas. As Pawan Tulsiani and his partners had purchased the

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same land from Ramesh Bhadani so, during the course of survey proceedings Pawan Tulsiani was cross examined and it was asked to him that why the payment of Rs.8,08,76,700/- made to Ramesh R. Bhadani on account of purchase of land Should not be treated as unaccounted investment in the hands of Pawan Tulsiani and his partners. In response to the same he admitted about the cash transactions during the sale of land, but he did not disclose the exact cash amount paid by him to Ramesh R. Bhadani.

It is very much clear that both the land Block No.438 and 439/2 were purchased by Pawan K. Tulsiani as the leading person and its partners. Both the lands were purchased from Ramesh R. Bhadani, but the purchase deed for land 439/2 were made directly between Vinod M. Lavri, the original land owner and the shadow purchaser Paresh M. Mavani and Jaswant M. Patel on behalf of Pawan K. Tulsiani. Further, the other conditions mentioned in the sauda chithi about House No.3, Union Point, Ghod Dod Road, were also purchased by Ramesh R. Bhadani which itself prove that the each condition discussed in the sauda chithi have been fulfilled by both the purchaser and the seller. Therefore, it can be easily concluded that the land transaction deal was finalized as per the terms and conditions as specified in the sauda chithi for both the land. Each conditions including payment schedule have been fulfilled by the purchaser and seller of the land."

28. It may be for this exercise to be undertaken,

reopening is sought to be undertaken after a period of

about 6 years and more, but for initiating such action, as

has been revealed, appropriate sanction has been

obtained and thereafter, competent authority is

proceeding ahead. Hence, we are of the clear of the

opinion that on the basis of such analysis and conclusion

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of an authority, this is not a fit case to exercise

extraordinary jurisdiction.

29. In addition to this, it is clearly visible from the notice

impugned in the petition dated 30.3.2018 at Annexure-D,

same has been issued after obtaining necessary sanction

from the higher authority as required under the Statute

and as such notice impugned cannot be assumed to be

without jurisdiction. At this stage of proceedings and

peculiar background of these facts, we may clarify that

petitioner can agitate the issue of even jurisdiction before

competent authority who is to proceed and adjudicate

further and as such we are of the clear view this is not a

case for exercising extraordinary jurisdiction and

petitions do not deserve to be entertained. Even the

authority who passed the order of disposing of the

objection is also well within the discretion vested in law

and after careful analysis of the material on record and

exercise of discretion prima facie suggests that same is

within the prescribed parameters and it cannot be said to

be perverse in any form as each and every material as

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well as the explanation offered by the petitioner has been

dealt with and arrived at a particular conclusion. Merely

because same is not favourable to petitioner,

extraordinary jurisdiction cannot be involved by us for

substituting the view of the authority on the basis of the

very same material, particularly when entire mechanism

as provided under the Act to redress the grievance of the

petitioner even in the process of reopening being

available. Hence, we are of the clear opinion that no case

is made out by the petitioner.

30. One additional fact which we may not lose sight of is

that even from reasons furnished under communication

dated 17.9.2018 - Annexure-F for reopening when Deputy

Commissioner of Income Tax, Surat sought sanction since

4 years had elapsed of the relevant assessment year,

seeking necessary sanction to issue notice under Section

148 of the Act, which has been accorded by the Principal

Commissioner of Income Tax in view of Section 151(1) of

the Act and referring to this communication dated

17.9.2018 also, it appears that after careful analysis of

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the documents and search operation, the competent

authority has sought sanction and same has been granted

by an authority under the Statute. Since this factual

matrix and analysis is based on the entire challenge in

the petition, we deem it proper to incorporate hereunder

same since we are of the clear opinion that no case is

made out to exercise extraordinary jurisdiction. Following

is the conclusion of the competent authority while

seeking sanction to proceed ahead against the petitioner.

Since the said conclusion is very much necessary and the

authority is required to be permitted to proceed ahead,

we may deem it proper to refer to and quote the same. It

reads:-

"2. Further, Your request is considered and the reasons recorded u/s 147 of the 1.T. Act for reopening the case for A.Y. 2011-12, is reproduced as under:-

"The assessee has filed its return of income for A.Y. 2011-12 on 29.03.2013 declaring total income at Rs.1,00,85.160/-. The same was processed u/s 14301) of the Act on 17.08.2013.

2. In this case, an information has been received from the DCIT, Central Circle 2. Surat related to unexplained investment made by the assessee Shri Pawan Kishanchand Tulsiyani The DCIT, Central Circle-

2, Surat has reported that a search action was carried out u/s 132 of the 1. T. Act, 1961 on 18.02.2014. During the search proceedings in the case of Shri of Shri (illegible) the books of accounts and documents are

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maintained with his accountant Shri Piyush G. Moch Subsequently search action was carried out at the residence of Piyush G. Modi at 14. Alkapuri Society, Sumul Dairy Road, Surat. During the course of search proceedings various documents were found and seized, relevant information as derived from them is discussed herewith.

2.1. Selling of Land Block No.438, 439/ Paiki 2. by Ramesh R. Bhadani to Pawan Tulsiyani:-

As per this sauda chitti seized during the search, land of Block No.438, 439/ Paiki 2, at Dumas admeasuring area 22870 sq. yards was sold to Pawan Tulsiyani at The rate of Rs.14101/- per sq. yard for a consideration of Rs.32,24,89,000/-. It was further written in the sauda chithi that Pawan K. Tulsiani held his ownership right in House No.3 of Union Point, ghod Dod Road, Surat. The area of the above property at Union Point, Ghod Dod, Surat was 10000 sq. ft. including ground first floor and the + rate of Rs.15.151/- per sq. ft was decided between Pawan K. Tulsiani and Ramesh R. Bhadani. Thus, the total price of the above property came to Rs.15,15,10,000/-. As per this sauda chithi, Pawan K. Tulsiani had sold this property of House No.3, Union Point, Ghod Dod Road, Surat to Ramesh R. Bhadani in lieu of payment against the purchase of land at Block No. 438, 439/2, Dumas. The value of this property had been decided at Rs.15,15,10,000/- and this amount had been subtracted from the total amount of Rs.32,24,89,000/- and it was decided that the balance amount of Rs.17,09,79,000/- will be paid by Pawan Tulsiyani to Ramesh R.Bhadani. The payment schedule of the balance amount was also mentioned in the sauda chithi.

It was gathered during the assessment proceedings that the above both lands were purchased by R.P. Associates in which Shri pawan Tulsiyani is one of partner and House No.3, Union Point, ghod Dod Road, Surat was purchased by M.B. Systems in which Shri Ramesh R. Bhadani is one of Partner.

2.1 (a) Further, it is also reported that on perusal of Annexure-A/21, Page No. 3, it was noticed that Shri Pawan Tulsian has made payment in cash of Rs.6,11,00,000/- on various dates to Shri Ramesh R.

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Bhadani for purchase of land at Block No. 438 and 499/2.

              10.01.2011      Rs. 11,00,000
              13.01.2011      Rs.3,00,00,000
              13.01.2011      Rs.3,00,00,000
                              ____________
                              Rs.6,11,00,000

During the course of statement dated 16.05.2014, Shri Pawan K. Tulsani had admitted in his statement that the unaccounted cash has been paid for purchase of both the above land but the fear of payment of taxes he did not stated the correct amount of unaccounted cash paid He has promise that after consultation with his partners he will state the correct amount before the DDIT(Inu) on 19.05.2014, but later on he did not turn up to state the correct fact.

In view of the above facts, it is clear that source of the sand cash payment amounting to Rs.6,11,00,000/- made by Shri Pawan K. Tulstani in lieu of purchase of the said two land during the FY 2010- relevant to A.Y 2011-12 remains unexplained

2.2. Selling of Land Block No.706, at Dumas:

Page No.2 & 10, of Annexure-A2 seized during the search from the residence of Piyush Modi pertains to saudu chithi made between Pawan Tulstani as seller and Dilip C Sojitra as purchaser for the land at Block No.06. Dumas.

In consequences of search, conducted on 18.02.2014 at the premises of Piyush Modi, at 14. Alkapuri Society, Sumul Dairy Road, Surat, a survey was also conducted on 15.05.2014 at the office and factory premises of Pawan Tulsiyanı to investigate transactions occurred in land Block No.706, situated at Dumas Page No 2 & 10, of Annexure A-2, seized during the search from the residence of Piyush Modi The above suuda chithi was shown to Shri Pawan Tulsiyani during the survey proceedings and was asked to explain in detail content of this page. On perusal of the page no.2 of Annexure A-2 dated 23.10.2010 as shown to Pawan Tulsiyani he confirmed that the sauda chithi in question was prepared with consent of him and

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Dilpbhai Sojitra He identified his and Dilip Sojitra's signature as reflected on the page and he added that the entire deal was witnessed by Paresh M. Mavani and he had also signed on it Further, he, explained that the land Block No.706, situated at Dumas, admeasuring area 15972 sq yards was decided to be sold to Dilipbhai Sojitra at the rate of Rs.10602/- per sq. yard. Pawan Tulsiyani also admitted that he received Rs.11,00,000/- as advance(token money), for confirmation of the deal. He also explained that the land Block No.706, situated at Dumas pertained to navi sharat. As per Gujarat Land Act, the land belonging in navi sharat cannot be sold without altering it into juni sharat If a person want to alter the land to juni sharat belonging to navi sharat then certain amount of premium as decided by Gujarat Government is to be paid. Pawan Tulsiyani stated that he did not know about the quantum of premium so the deal was cancelled. He also explained about the contents of page no10 of the Annexure A-2. It is a sauda chithi of the same land at Block No.706, Dumas made between Pawan Tulsiani as seller and Dilip C sojitra as purchaser. Pawan Tulsiyani stated that he once again decided to sell this land after gathering information of premium amount now the same land was decided to sell to Dilipbhai Sojitra at the rate of Rs.14589/-, Rs.51,00,000/- was also advanced by Dilipbhai Sojitra, and receipt of the same was duly acknowledged Pawan Tulsiyani during the course of survey proceedings. On being asked about the present ownership of the land Block No06, situated at Dumas, Pawan Tulsiyani stated that his firm M/s. AR Enterprise owes this land The land was purchased on 28.10.2013 at an amount of Rs 5,12,83,200/-.

From the above discussion it is clear that the land was purchased by Pawan Tulsiyani in the name of M/s. AR. Enterprise on (28.10.2013 at an amount of Rs.5.12,83,200/-. It is very surprising, as per the sauda chit dated 09.02.2011 the same land was being sold at an amount of Rs.23.30.15.508/- Hence, the documented purchase price of land of Rs.5,12,83,200/- cannot be relied upon because in the real estate market cost of the land increases with time. So the price of the same land cannot be less than that of its price two years before. Thus, if it is assumed that the transactions are being made at par, the the land would have been purchased at an amount of Rs 23.30.15.508/ It is a

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general trend in the land transactions that the registered document were made only at jantri price decided by the Government of Gujarat for stamp duty purpose, which is much below the actual sale consideration. The remaining amount in excess of the document price and the actual market price will be paid in cash by the purchaser. But, in the saudu chithi the actual sale price of the land will be written, since it is a informal document between the purchaser and seller, Further, between the period of 2010 to 2013, the land prices in Surat have been increased substantially in Dumas area. If we consider the sale price of the above land as per the sauda chithi dated 9.2.2011, the actual sale consideration in 2013, which is the most conservative price for the above land then also it is proved that Pawan Tulsion had paid substantial amount on purchase of the above land. Therefore, Pawan Tulsiyani's firm M/s A.R. Enterprise has paid Rs.18,17,32,308/-(23,30,15.508 - 5,12,83,200) out of books, which can be treated as unaccounted investment of Pawan- Tulsiyani's firm M/s. A.R. Enterprise's for the FY 2013-14 The unaccounted investment of Pawan Tulstani in the above land at Block No.706, Dumas comes to Rs.18,17,32,308/-. However, as per the sauda chithi dated 09.02.2011, the purchaser has to pay 25% of total on-money amount on 09.02.2011. So, unaccounted investment of Shri Pawan K. Tulsiani amounting to Rs.4,54.33.077/- (25% of Rs.18,17,32,308) pertains to FY.2010-11 relevant to A.Y 2011-12.

3. Report of the DCIT, Central Circle-2, Surat has been perused with reference to statement given u/s.131 of the Act of Shri Pawan K. Tulsainai and transactions appearing in the seized paper provided referred above. After perusai and having verified, the finding of the DCIT, Central Circle-2, Surat is found to be in order that the assessee Shri Pawan K. Tulasiani was paid on- money in the form of cash amounting to Rs.6,11,00,000/- in lieu of purchase of land block no 438, 439/Paiki 2 during the FY 2010-11 relevant to AY 2011-12, source of the said cash payment remains unexplained and required to be added in the total income of the assessee. Further, it is also observed as per the sauda chithi dated 09.02.2011 and statement dated 16.05.2014 given by Shri Pawan K. Tulsiani that Shri Pawan K. Tulsiani has made investment amounting

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to Rs.454,33,077/- (25% of Rs.18,17,32,308) for the purchase of land block mo 706 at Dumas, pertains to FY 2010-11 relevant to A.Y.2011-12, remains unexplained and required to be added in the total income of the assessee.

4. In view of above facts and finding, the detailed investigation report in the above matter received from the DCIT, Central Circle-2. Surat has been perused and analyzed From the detailed investigation report based on documentary evidences seized during the course of search action and statement of the assessee Shri Pawan K. Tulsiani during the course of search/survey action, it is clear that the assessee Shri Pawan K. Tulasiani was paid on-money in the form of cash amounting to Rs.6,11,00,000/- in lieu of purchase of land block no. 438, 439/Paiki 2 during the FY 2010-11 relevant to AY 2011-12, source of the said cash payment remains unexplained and required to be added in the total income of the assesse. Further, it is also observed as per the sauda chith dated 09.02.2011 and statement dated 16.05.2014 given by Shri Pawan K Tulstani that Shri Pawan K Tulsiani has made investment amounting to Rs.4,54,33,077/- (25% of Rs.18,17,32,308) for the purchase of land block no 706 at Dumas, pertains to FY 2010-11 relevant to A.Y 2011- 12, remains unexplained and required to be added in the total income of the assessee.

5. From the above, it is clear that the assessee has made paid on money in the form of cash to the tune of Rs.6,11,00,000/- for the purchase of land block no. 428, 439/Paiki 2, source of the said cash is unexplained & also the assessee has paid investment of Rs.4,54,33,077/- for the purchase of land block no. 706 at Dumas, source of the said investment is also unexplained and the same requires to be brought within the ambit of taxation.

6. In view of the above, I have reason to believe that income of Rs.10,65.33.077/- has escaped assessment within the meaning of section 147 of the IT Act, 1962. It is therefore, necessary to initiate action u/s. 147 of the IT. Act, 1961, in the case of the assessee for A.Y 2011-12.

7. In this case, return of income was filed for the

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year under consideration and no assessment u/s 143(3)/ 147 was made and the only requirement to initiate proceedings u/s 147 is reason to believe which has been recorded above (refer paragraphs to 6).

It is pertinent to mention here that in this case the assessee has paid on-money for the purchase of land block no. 438, 439/Paiki 2 and also made unaccounted investment for the purchase of land block no 706 at Dumas. Therefore, the said transaction made by the assessee remained unexplained and income chargeable to tax had an escaped assessment within the meaning of section 147 as discussed m paragraph (1 to 6) above. In view of the above, the provisions of clause (b) of Explanation 2 to section 147 are applicable to facts of this case and the assessment year under consideration is deemed to be a case where income chargeable to tax has escaped assessment.

31. Since the aforesaid factual details are very much

expedient to proceed ahead in contemplated action, we

find it necessary that the authority must be allowed to

examine at length while reopening the assessment and

we cannot usurp such discretion of an authority in the

aforesaid peculiar background of these facts, more

particularly when at various levels, as indicated above,

certain admissions of petitioners are also worth proper

scrutiny and as such, fact finding authority is required to

analyze them freely. At this stage, we may deem it proper

to quote hereunder the relevant observations made by

Hon'ble the Apex Court in case of D.N. Jeevaraj Vs.

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Chief Secretary, Government of Karnataka and

others reported in (2016) 2 SCC 653 propounding that

High Court/ Constitutional Court in exercising its

extraordinary jurisdiction cannot usurp the discretion of a

statutory authority unless it believes that such an

authority will not be able to exercise discretion on

account of some inability. In the instant case, we find no

such eventuality has arisen to assume that authority will

not examine or petitioner will not have any opportunity to

put forth his case during the proceedings post-issuance of

notice impugned in the petition. It would be of benefit to

note the observations contained in paragraph 41 and 43

of Hon'ble Apex Court which reads as under:

"41. This Court has repeatedly held that where discretion is required to be exercised by a statutory authority, it must be permitted to do so. It is not for the courts to take over the discretion available to a statutory authority and render a decision. In the present case, the High Court has virtually taken over the function of the BDA by requiring it to take action against Sadananda Gowda and Jeevaraj. Clause 10 of the lease-cum-sale agreement gives discretion to the BDA to take action against the lessee in the event of a default in payment of rent or committing breach of the conditions of the lease-cum-sale agreement or the provisions of law.[8] This will, of course, require a notice being given to the alleged defaulter followed by a hearing and then a decision in the matter. By taking

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over the functions of the BDA in this regard, the High Court has given a complete go-bye to the procedural requirements and has mandated a particular course of action to be taken by the BDA. It is quite possible that if the BDA is allowed to exercise its discretion it may not necessarily direct forfeiture of the lease but that was sought to be pre- empted by the direction given by the High Court which, in our opinion, acted beyond its jurisdiction in this regard.

43. To this we may add that if a court is of the opinion that a statutory authority cannot take an independent or impartial decision due to some external or internal pressure, it must give its reasons for coming to that conclusion. The reasons given by the court for disabling the statutory authority from taking a decision can always be tested and if the reasons are found to be inadequate, the decision of the court to by-pass the statutory authority can always be set aside. If the reasons are cogent, then in an exceptional case, the court may take a decision without leaving it to the statutory authority to do so. However, we must caution that if the court were to take over the decision taking power of the statutory authority it must only be in exceptional circumstances and not as a routine. Insofar as the present case is concerned, the High Court has not given any reason why it virtually took over the decision taking function of the authorities and for this reason alone the mandamus issued by the High Court deserves to be set aside, apart from the merits of the case which we have already adverted to."

32. Thus, above material would disclose that information

received from the Investigating Wing cannot be denied

and they are prepared after conducting search and

seizure operation, inquiry, recording of the statements

and collection of evidence. The expression 'reason to

believe' occurring in Section 147 would mean and include

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justification for such re-opening and when the Assessing

Officer has cause or justification to know or suppose that

income had escaped assessment, it can be safely inferred

that he is said to have reason to believe that income had

escaped assessment. Finality to the ascertainment cannot

be attached at this stage. When there is relevant material

on which a person of reasonable prudence would have

formed the belief of such escapement, it would suffice

and in the instant case, the above material is sufficient

enough to arrive at such a conclusion. The sufficiency of

the material would be good enough for the authority to

clutch the jurisdiction for commencement of re-

assessment proceedings. However, the sufficiency or

correctness of the material would not be in the realm of

consideration at this stage. Thus, where the Assessing

Officer has reason to believe and there is prima facie

material for commencement of re-assessment proceeding,

sufficiency or correctness of the material is not a thing to

be considered at that stage and the correctness or

otherwise of the reasoning recorded for re-opening of the

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assessment would not be in the realm of adjudication by

going into merits of the said reasoning. If such reasons

are not perverse and there being not mere change of

opinion and there being sufficient material or reason to

believe there is escapement of income to tax it would

suffice for the authorities to proceed to re-open the

assessment subject to other prescribed criteria also being

satisfied. The borrowed opinion also being conspicuously

absent in the instant case subsequent events also

disclosing certain transactions attributable to the

assessee having been unearthed during the course of

search proceedings and the statement of the assessee

himself disclosing the admission with regard to the said

transaction, it cannot be gainsaid by the petitioner /

assessee that such commencement of re-assessment

proceeding is without jurisdiction or jurisdictional error

having been committed by the authorities.

33. At this stage, it cannot be assumed either way who is

right or wrong on the basis of this crucial disputed

questions of fact. In catena of decisions, Hon'ble the Apex

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Court has propounded that extraordinary jurisdiction may

not be exercised when disputed questions of fact are

involved though there are line of judgments but with a

view to avoid overburdening the present order, we

propose to extract the relevant observations contained in

paragraph 26 in the matter of Shubhas Jain Vs.

Rajeshwari Shivam and others reported in 2021 SCC

OnLine SC 562, reads as under:-

"26. It is well settled that the High Court exercising its extraordinary writ jurisdiction under Article 226 of the Constitution of India, does not adjudicate hotly disputed questions of facts. It is not for the High Court to make a comparative assessment of conflicting technical reports and decide which one is acceptable."

34. From the aforesaid proposition of law also, we are of

the clear opinion that this is not a case in which we may

exercise extraordinary jurisdiction nor a case is made out

by the petitioner for this Court to exercise such

extraordinary jurisdiction. Hence, we refrain to do so.

35. Yet, another reason for us not to exercise the

discretion is that under the scheme of the Act, petitioner

has very much the remedy by way efficacious redressal

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mechanism under various provisions of the Act available

and as such when petitioner is not left remediless, at this

stage of proceedings, to invoke extraordinary jurisdiction

would not be just and proper. At various stages,

petitioner is permitted to avail alternative statutory

remedies after ultimate analysis or conclusion being

arrived at by an authority. At this stage, we may not

assume anything and petitioner being not remediless, we

are not inclined to exercise extraordinary jurisdiction.

36. In the light of the aforesaid observations, the

judgment which have been relied upon by learned counsel

for the petitioner are no-doubt projecting the salutary

principles, but the background of this peculiar facts and

the material and discussion which we have made in

earlier paragraphs of this very order, we are of the

opinion that no decision may be applied as a straitjacket

formula as it reflects distinguishable circumstance as well

and as such, based upon the sound principle of law on the

precedent, we are of the view that decisions cited by

learned counsel are of no assistance to their propositions.

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We may say so in view of the fact that while applying the

principle by way of precedent, one additional fact or a

distinct fact would make a world of difference in applying

the said proposition is clearly laid down by the Hon'ble

Apex Court in the case of State of Madhya Pradesh Vs.

Narmada Bachao Andolan and Another reported in

(2011) 7 SCC 639. Relevant observations contained in

paragraph 64, we deem it proper to quote hereunder:-

"64. The Court should not place reliance upon a judgment without discussing how the factual situation fits in with a fact-situation of the decision on which reliance is placed, as it has to be ascertained by analysing all the material facts and the issues involved in the case and argued on both sides. A judgment may not be followed in a given case if it has some distinguishing features. A little difference in facts or additional facts may make a lot of difference to the precedential value of a decision. A judgment of the Court is not to be read as a statute, as it is to be remembered that judicial utterances have been made in setting of the facts of a particular case. One additional or different fact may make a world of difference between the conclusions in two cases. Disposal of cases by blindly placing reliance upon a decision is not proper. (Vide MCD v. Gurnam Kaur, Govt. of Karnataka v. Gowramma and State of Haryana v. Dharam Singh)"

37. Hence, we are of the view that decisions in the case

of Commissioner of Income Tax v. Balbir Singh Maini

reported in [2017] 298 ITR 351 (SC), in the case of Ami

C/SCA/22815/2019 CAV JUDGMENT DATED: 02/01/2023

Ashish Shah v. Income Tax officer reported in [2021] 126

Taxman.com 236 (Gujarat) and decision dated 15.2.2017

delivered in Special Civil Application No.21691 of 2016

with Special Civil Application No.21741 of 2016 relied

upon would not be applicable, since facts on hand and the

detailed analysis by the competent authority altogether

project a different fact situation.

38. Hence, we are of the considered view that there is

no merit in these petitions and they are liable to be

dismissed for the reasons aforestated and accordingly,

they stand dismissed. Rule is discharged. No order as to

costs.

(ARAVIND KUMAR,CJ)

(ASHUTOSH J. SHASTRI, J) Bharat