Kerala High Court
Al Manama Retail Private Limited vs The National E-Assessment Centre on 16 June, 2021
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR.JUSTICE V.G.ARUN
WEDNESDAY, THE 16TH DAY OF JUNE 2021 / 26TH JYAISHTA, 1943
WP(C) NO. 11704 OF 2021
PETITIONER/S:
AL MANAMA RETAIL PRIVATE LIMITED
MANAM HOUSE BUILDING NO MP X 614, UMAYANALLOOR
POST, KOLLAM 691 589 KERALA, (REPRESENTED BY ITS
MANAGING DIRECTOR MR. A.K. SABEER.)
BY ADVS.
M.P.SHAMEEM AHAMED
CYRIAC TOM
RESPONDENT/S:
1 THE NATIONAL E-ASSESSMENT CENTRE
DELHI INCOME TAX DEPARTMENT, MINISTRY OF FINANCE,
401, 2ND FLOOR, E-RAMP, JWAHARLAL NEHRU STADIUM,
DELHI 110003.
2 UNION OF INDIA
REPRESENTED BY REVENUE SECRETARY, DEPARTMENT OF
REVENUE, MINISTRY OF FINANCE, GOVERNMEN OF INDIA,
NORTH BLOCK, NEW DELHI 110001.
BY ADVS.
P.K.RAVINDRANATHA MENON (SR.)
JOSE JOSEPH, SC, FOR INCOME TAX
OTHER PRESENT:
ASG P.VIJAYAKUMAR
THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON
16.06.2021, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
W.P.(C) No.11704 of 2021
2
JUDGMENT
Dated this the 16th day of June, 2021
Petitioner is aggrieved by Ext.P10 assessment
order and Ext.P11 demand notice for the assessment
year 2018-19. The essential facts are as under:
The petitioner had filed Ext.P1 income tax
return for the assessment year 2018-19, reporting
a loss of Rs.12,90,41,539/-. Thereafter, the
prescribed authority issued notice under Section
143 (2) of the Income Tax Act seeking details
relating to the return submitted by the
petitioner. Later, by Ext.P3, the petitioner was
informed that the assessment will be completed
under the Faceless Assessment Scheme, 2019. This
was followed up with Ext.P4 notice requiring the
petitioner to file certain documents and accounts.
On the requisite details being uploaded, the
W.P.(C) No.11704 of 2021
petitioner was issued with Ext.P6 notice seeking
clarification on certain points. Even though, the
queries were answered vide Ext.P7 dated
29.04.2021, the authority issued Ext.P8 show cause
notice, without considering the reply. Along with
the show cause notice, the draft assessment order
was also enclosed. Under the show cause notice
received at 4.35 p.m on 30.04.2021 through email,
the petitioner was given time for submitting reply
till the midnight of 03.05.2021. As the lockdown
imposed by the Government was in force, the
petitioner was not able to co-ordinate with the
auditors and to submit the reply within the
limited time granted. This resulted in Ext.P10
assessment order and Ext.P11 demand notice being
issued, fixing the total income at
Rs.6,97,15,801/- and the tax liability at
Rs.3,17,65,650/-.
W.P.(C) No.11704 of 2021
2. I heard Sri.Shameem Ahamed M.P, learned
Counsel for the petitioner and Sri.Jose Joseph,
learned Standing Counsel for the Income Tax
Department.
3. Having heard the learned Counsel, the
first question that arises for consideration is
regarding the maintainability of the writ
petition, in view of the efficacious alternative
remedy of appeal available under the statute. The
law is well settled that, when alternative remedy
is available, the extraordinary jurisdiction under
Article 226 is to be exercised only when the
fundamental rights are found to have been
infringed or when the order is issued without
jurisdiction. The Honourable Apex Court has laid
down this position in a catena of decisions. The
relevant portion of one such decision in [Shivram
Poddar v. ITO, AIR 1964 SC 1095 : (1964) 51 ITR
W.P.(C) No.11704 of 2021
823], is extracted hereunder:
"13. We may observe that we have proceeded
to decide this case on the footing that the
business of the firm was discontinued on
dissolution of the firm. It is however
necessary once more to observe, as we did in
O.A. Abraham case [(1961) 2 SCR 765] that the
Income Tax Act provides a complete machinery
for assessment of tax, and for relief in
respect of improper or erroneous orders made by
the Revenue Authorities. It is for the Revenue
Authorities to ascertain the facts applicable
to a particular situation, and to grant
appropriate relief in the matter of assessment
of tax. Resort to the High Court in exercise of
its extra-ordinary jurisdiction conferred or
recognised by the Constitution in matters
relating to assessment levy and collection of
Income tax may be permitted only when questions
of infringement of fundamental rights arise, or
where on undisputed facts the taxing
authorities are shown to have assumed
jurisdiction which they do not possess. In
attempting to by-pass the provisions of the
Income Tax Act by inviting the High Court to
decide questions which are primarily within the
jurisdiction of the Revenue Authorities, the
party approaching the Court has often to ask
the Court to make assumptions of facts which
remain to be investigated by the Revenue
Authorities."
4. The discussion of facts in Ext.P10 order
shows that, initially a notice under Section
143(2) of the Income Tax Act was issued on
W.P.(C) No.11704 of 2021
22.09.2019, followed by notices dated 16.12.2020,
27.12.2020 and 19.04.2021 under Section 142 (1)
of the Act. Thereafter, show cause notice dated
30.04.2021 along with draft assessment order,
computation sheet and demand notice was issued,
requiring the assessee to show cause as to why the
assessment should not be completed as per the
draft assessment order. The assessee was given
time till 11.59 p.m on 03.05.2021 to submit its
reply, if any. The assessee having failed to
respond, Ext.P10 assessment order was passed. The
very objective of the scheme being to speed up the
process of assessments, the petitioner cannot
complain about the limited time granted for
submitting reply, particularly when the entire
procedure is via electronic mode. In such
circumstances, the contention that the assessment
order was passed without granting sufficient
W.P.(C) No.11704 of 2021
opportunity and therefore violates the principles
of natural justice cannot be countenanced.
5. Learned Counsel for the petitioner raised
an alternative plea that in the event of the writ
petition being dismissed, the petitioner may be
given liberty to file the appeal and recovery
pursuant to Ext.P10 may be kept in abeyance for
enabling the petitioner to avail the appellate
remedy.
In the circumstances, the writ petition is
dismissed, without prejudice to the petitioner's
right to file statutory appeal against Ext.P10 and
directing the recovery proceedings based on
Ext.P11 to be kept in abeyance for one month.
Sd/-
V.G.ARUN
JUDGE
Scl/16.06.2021
W.P.(C) No.11704 of 2021
APPENDIX
PETITIONER'S/S EXHIBITS:
Exhibit P1 COPY OF THE ACKNOWLEDGEMENT FOR FILING
INCOME TAX RETURN ALONG WITH STATEMENT
OF INCOME FOR THE ASSESSMENT YEAR 2018-
Exhibit P2 COPY OF THE NOTICE DATED 22.09.2019
ISSUED U/S. 143(2)
Exhibit P11 COPY OF DEMAND NOTICE DATED 4.05.2021.
Exhibit P12 COPY OF JUDGEMENT IN THE CASE OF
VODAFONE INDIA LTD VS. UOI REPORTED IN
(2014) 265 CTR (BOM ) 42.
Exhibit P3 COPY OF THE LETTER DATED 15.10.2020
ISSUED BY 1ST RESPONDENT.
Exhibit P4 COPY OF THE NOTICE DATED 27.12.2020 U/S
142 (1)
Exhibit P5 COPY OF REPLY DATED 28.01.2021 LONG
WITH E-PROCEEDINGS ACKNOWLEDGEMENT
DATED 30.01.2021.
Exhibit P6 COPY OF NOTICE DATED 19.04.2021 ISSUED
BY 1ST RESPONDET U/S/ 142(1)
Exhibit P7 COPY OF REPLY DATED 29.04.2201 ALONG
WITH E-PROCEEDINGS ACKNOWLEDGEMENT.
Exhibit P8 COPY OF THE SHOW CAUSE NOTIC DATED
30.04.2021.
Exhibit P9 COPY OF GOVERNMENT ORDER G.O.(RT) NO.
391/2021/DMD DATED 30.04.2021.
Exhibit P10 COPY OF ASSESSMENT ORDER DATED
4.05.2021
