Madras High Court
Shri R.Srinivasan vs The Income Tax Officer on 19 July, 2021
W.P.Nos.2142 & 2143 of 2017
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED :19.07.2021
CORAM
THE HONOURABLE MR.JUSTICE S.M.SUBRAMANIAM
W.P.Nos.2142 & 2143 of 2017
Shri R.Srinivasan ...Petitioner in both W.Ps
Vs
The Income Tax Officer
Non-Corporate Ward 3(1)
No.63, Race Course Road,
Coimbatore. ... Respondent in both W.Ps
Prayer in W.P.No.2142 of 2017: Writ Petition filed Under Article 226 of
the Constitution of India to issue of Writ of Certiorarified Mandamus,
calling for the records of the respondent in Assessment Order dated
09.12.2016 bearing PAN:CEFPS0550C for AY 2009-10 passed by the
respondent as against this petitioner and quash the same and direct the
respondent to drop all further proceedings.
Prayer in W.P.No.2143 of 2017: Writ Petition filed Under Article 226 of
the Constitution of India to issue of Writ of Certiorarified Mandamus,
calling for the records of the respondent in Assessment Order dated
09.12.2016 bearing PAN:CEFPS0550C for AY 2012-13 passed by the
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W.P.Nos.2142 & 2143 of 2017
respondent as against this petitioner and quash the same and direct the
respondent to drop all further proceedings.
For Petitioner : Mr.P.J.Rishikesh
[in both W.Ps]
For Respondent : Mr.A.P.Srinivas
Senior Standing counsel
For Income Tax
[in both W.Ps]
COMMON ORDER
The writs on hand are filed, questioning the validity of the assessment
order dated 09.12.2016 for the Assessment Years 2009-10 and 2012-13.
2. The learned counsel appearing on behalf of the writ petitioner
mainly contended that there cannot be any imposition of tax twice in respect
of the same transactions. One Mr.D.Ramagopal, who is the nephew of the
petitioner, has paid the tax as applicable in respect of the particular
transaction and therefore, the very assessment orders passed by the
respondent are without jurisdiction and therefore, the orders of assessment
are to be quashed.
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W.P.Nos.2142 & 2143 of 2017
3. The writ petitioner earlier filed W.P.Nos.43982 and 43983 of 2016,
questioning the validity of the reopening of assessment under Section
147/148 of the Act. This Court passed a common order on 22.12.2016 and
the relevant paragraph 5 reads as under:
“5. Mr.Chopda, who appears for the Revenue says that
the petitioner's assessments for the years 2009-10 and 2012-13
have been re-opened on a protective basis, to avert a difficult
situation, which could arise, if at some stage, Shri.D.Ramgopal
were to take the stand that the subject income/capital gains
should be assessed in the hands of the petitioner. In other
words, learned counsel says that protective assessment in the
hands of the petitioner is made, so that, the Revenue is not left
without a remedy. Mr.Chopta says that clearly, there will be no
tax liability vis-a-vis, the petitioner, in case, such a stand is not
taken by Shri.D.Ramgopal.”
4. Relying on the said judgment, the learned counsel for the petitioner
reiterated that even the order passed by this Court that the reopening was
done on a protective basis and therefore, the penalty imposed is not
traceable under the provisions of the Income Tax Act. The said
Mr.D.Ramagopal, also challenged the actions of the respondent on the same
line and his appeal is now pending before the Commissioner of Income
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W.P.Nos.2142 & 2143 of 2017
Tax(Appeals). The petitioner has questioned the reopening of assessment as
well as the assessment orders now passed.
5. The various grounds raised in the writ petitions deserve an
elaborate adjudication on merits and in accordance with law based on the
documents and evidences to be scrutinized. Such an adjudication cannot be
done by the High Court in a writ proceedings under Article 226 of the
Constitution of India. There are two way of raising jurisdictional point in
recent days by the litigants. The jurisdictional point is mostly raised now-a-
days. Relying on certain facts and circumstances, which all are culled out
from the documents and evidences. The jurisdictional point culled out in
that manner cannot be entertained by the High Court under Article 226 of
the Constitution of India. For every error, mistake, non-appreciation of
documents or erroneous appreciation or otherwise cannot be construed as
lack of jurisdiction. Only in cases, where if the provisions of the Act is not
providing any power to the authority and directly hit any of the provisions
of the Income Tax Act, then alone, the Court can considered the case, where
there is a lack of jurisdiction for the purpose of entertaining a writ petition.
In order to sustain the entertainability of the writ petitions, the practice is
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W.P.Nos.2142 & 2143 of 2017
developed that every case, jurisdiction point is raised, which all are mostly
based on the factual aspects of the matter. Thus, the High Court is expected
to be cautious, while entertaining the writ petitions even in such cases,
where the petitioners have raised the point of jurisdiction. The point of
jurisdiction is such warranting an interference must be the consideration for
the purpose of entertaining a writ petition and even an iota of doubt in
respect of the factual adjudication, then the matter is to be allowed to go on
the hands of the Appellate authority, who is the final fact finding authority
under the provisions of the Act.
6. The importance of the Appellate remedy contemplated under the
Statute can never be undermined at any circumstances. The final fact
finding made by the Appellate authority would be of valuable assistance for
the High Court for the purpose of exercise of power of judicial review under
Article 226 of the Constitution of India. In the event of entertaining the writ
petition based on the order-in-original, the litigants are also deprived of
their right of appeal and further, there is a possibility of non-adjudication of
certain vital facts or commissions or commissions or otherwise. Thus, these
aspects are to be borne in mind, while entertaining a writ petition directly
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W.P.Nos.2142 & 2143 of 2017
against the orders in original.
7. The legislative intention for providing an appeal is that the
aggrieved person must be given an opportunity to redress their grievances
with reference to the original records. The Appellate authorities are bound
to verify the original records, if necessary. Such a valuable opportunity need
no be denied to the litigants aggrieved.
8. This apart, the Appellate authority, Taxation Tribunals are manned
by the experts in taxation. Therefore, adjudication of the facts with
reference to the documents by such experts would be of greater benefit to
the litigant as well as to the Constitutional Courts. Thus, the aggrieved
person, in all circumstances, must be allowed to prefer an appeal in the
manner prescribed and after exhausting the Appellate remedy, he has to
approach the proper Forum.
9. This being the principles to be adopted, this Court is of the
considered opinion that the petitioner has to adjudicate all the disputed
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W.P.Nos.2142 & 2143 of 2017
issues even in case, he relies of the orders of the Court, documents etc., and
redress his remedy in the manner prescribed. This being the principles to be
followed, the petitioner is at liberty to prefer an appeal before the
jurisdictional Appellate authority in a prescribed format within a period of
four weeks from the date of receipt of a copy of this order and by complying
with the provisions of the Statutes and Rules. If any such appeal is filed by
the petitioner, the Appellate authority is empowered to adjudicate the same
on merits and in accordance with law and by affording an opportunity to the
writ petitioner and dispose of the same as expeditiously as possible.
10. With these directions, both the writ petitions stand disposed of.
No costs.
19.07.2021
Speaking order/Non-speaking order
Index : Yes/No
Internet: Yes/No
Kak
To
The Income Tax Officer
Non-Corporate Ward 3(1)
https://www.mhc.tn.gov.in/judis/
W.P.Nos.2142 & 2143 of 2017
No.63, Race Course Road,
Coimbatore.
S.M.SUBRAMANIAM, J.
Kak
https://www.mhc.tn.gov.in/judis/
W.P.Nos.2142 & 2143 of 2017
W.P.Nos.2142 & 2143 of 2017
19.07.2021
https://www.mhc.tn.gov.in/judis/
