Case Law Details
Ajay Ajit Tanna Vs. Union of India (Bombay High Court)
I.t can be seen that only if reasons had been furnished to the Petitioner that one could ascertain whether there was tangible material available with the A.O. for formation of his ‘reason to believe’ that the income had escaped assessment. In the absence of any new tangible material and assuming that there was any material with the A.O. though not disclosed, in the absence of and on account of the failure of the A.O. establishing a live link with such a tangible material, it cannot be said that the jurisdictional condition had been satisfied by the A.O. while proceeding to issue a notice under Section 148 of the Act.
It can therefore clearly be held that the issuance of a notice under Section 148 of the Act in the absence of any new tangible material was nothing but an attempt to review the earlier order of assessment passed by the A.O.
14. The contention of learned Counsel for the revenue is that the extra ordinary writ jurisdiction need not be exercised by this Court, in the facts and circumstances of the present case, as there was an equally efficacious alternate remedy available to the Petitioner under the Act. The other contention of Mr. Kumar, learned Counsel for the revenue is that this Court ought not to exercise its extra ordinary writ jurisdiction, reliance was placed upon CIT & others V/s. Chhabil Dass Agarwal . While it is true that High Court would not entertain a petition under Article 226 of the Constitution of India if an effective alternate remedy is available to an aggrieved person yet the said principle of alternate remedy has been held to be a matter of self imposed convenience and not as a matter of rule. The exceptions to the rule of alternate remedy where a writ Court may exercise its jurisdiction under Article 226 of the Constitution of India, are cases where statutory authority has not acted in accordance with the provisions of an enactment in question, or has acted in defiance of the fundamental principles of judicial procedure, or has resorted to invoke the provisions which are repealed, or when an order has been passed in violation of the principles of natural justice. Reference in this regard can be made to CIT & others V/s. Chhabil Dass Agarwal.
In the present case, we do not wish to relegate the Petitioner to the alternate remedy as provided under the Income Tax Act for the simple reason that not only had the A.O. failed to satisfy the jurisdictional conditions for invoking its power under Sections 147/ 148 of the Act, but had also failed to comply with the directions of the Apex Court rendered in the case of GKN Driveshafts (India) Ltd.
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