CAV Order

1. The petitioner has filed this petition seeking the following reliefs:

          "(10.1) Call for the entire records concerning the case of the petitioner for its kind perusal.

          (10-2) Quashing the notice dated 11.03.2015 being Annexure P/2 issued under S.148 as the same is patently illegal and de hors the statute.

          (10-3) Declaring that the reassessment proceedings initiated under S.147/148 as lacking jurisdiction as being time barred and based on mere change of opinion.

          (10-4) Any other relief which this Hon'ble Court deems fit may also be granted.

          10B Interim Relief That it is humbly prayed that this Hon'ble Court may graciously be pleased to stay the proceedings arising out of or in pursuant to notice under S.148 of the Income Tax Act, 1961 being Annexure P/2, till the disposal of this petition in the interest of justice."

2. The facts, in brief, are that the petitioner/assessee is a registered society engaged in educational activities and imparting education through its colleges. The petitioner filed its return of income for the assessment year on 25.11.2008, declaring nil total income. An assessment order under Section 143(3) of the Income-Tax Act, 1961 (for short, "the Act, 1961") was passed on 20.12.2010, accepting the total income of the assessee as nil. On 11.3.2015, a notice under Section 148 of the Act, 1961 was issued by the Deputy Commissioner of Income-Tax (Exemption), Raipur, to the petitioner on the ground that its income had escaped assessment. Upon receipt of the notice under Section 148 of the Act, 1961, the petitioner moved an application seeking the reasons to believe recorded under Section 148(2), along with a copy of the approval of the appropriate authority. In turn, the respondent authorities furnished a copy of the reasons recorded under Section 147 of the Act on 25.6.2015, along with a letter of the Joint Commissioner of Income-Tax. The petitioner submitted detailed objections on 12.8.2015, raising an objection with regard to the jurisdiction of the Assessing Authority to reopen the assessment. An objection was also raised to the effect that the notice had been issued beyond the period of four years and was, therefore, barred by limitation. The respondent authorities passed an order on 2.3.2016 disposing of the objections raised by the petitioner.

3. Learned Senior Advocate appearing for the petitioner would contend that a reassessment notice can be issued only after fulfilling the requirements prescribed under Section 147 of the Act, 1961. He would submit that reopening a concluded assessment is a quasi- judicial function and the same cannot be undertaken in contravention of the statutory provisions. He would submit that there was no material available with the authority concerned to form a reason to believe that income had escaped assessment. He would contend that Section 147 of the Act, 1961 affects the substantive rights of an assessee by permitting the reopening of concluded assessments and protects the assessee by ensuring that he is not subjected to reassessment except under certain conditions and within the prescribed period of limitation. He would submit that the reason to believe must be based on tangible and concrete material. He has placed reliance on the following judgments with regard to reassessment:

          "(1) Commissioner of Income-Tax vs. M/s. Bhanji Lavji, Porbandar, (1972) 4 SCC 88.

          (2) Income Tax Officer vs. Lakhmani Mewal Das, (1976) 103 ITR 437.

          (3) The Parashuram Pottery Works Co. Ltd. vs. The Income Tax Officer, (1977) 1 SCC 408.

          (4) M/s Phool Chand Bajrang Lal and another v. Income Tax Officer, (1993) 4 SCC 77.

          (5) Fenner (India) Ltd. v. Deputy Commissioner of Income Tax, (2000) 241 ITR, 672.

          (6) Hindustan Lever Ltd. vs. R.B. Wadker and Others, (2004) SCC Online Bom. 154.

          (7) Haryana Acrylic Manufacturing Company vs. The Commissioner of Income Tax, MANU/DE/1554/2008.

          (8) Shree Chalthan Vibhag Khand vs. Deputy Commissioner of Income Tax, (2015) 376 ITR 419 (Guj.)

          (9) Madhya Pradesh Industries Ltd. v. Income Tax Officer, (1965) 56 ITR 18.

          (10) Calcutta Discount Co. Ltd. vs. Income Tax Officer, AIR 1961 SC 372.

          (11) Raza Textiles Ltd. v. Income Tax Officer, (1973) 1 SCC 633.

          (12) Sales Tax Officer v. M/s Uttareswari Rcie Mills, (1973) 3 SCC 171.

          (13) Whirlpool Corporation vs. Registrar of Trade, (1998) 8 SCC 1.

          (14) Commissioner of Income Tax V. Kelvinator of India Limited, (2010) 2 SCC 723.

          (14) Radha Krishan industries vs. State of Himachal Pradesh, (2021) 6 SCC 771.

          (15) Magadh Sugar & Energy Ltd. v. State of Bihar and Others, (2021) SCC Online SC 801."

4. On the other hand, learned counsel for the respondents would oppose the submissions made by learned counsel for the petitioner. He would submit that the reassessment order for the assessment year 2008-09 had already been passed on 23.3.2016 and that the said order was placed as Annexure-R/1 along with the return filed on 7.9.2016. He would submit that, despite having knowledge of the said order, the petitioner failed to challenge it. He would contend that the respondent authorities had complied with the mandatory requirements for reopening the assessment prior to issuance of the notice under Section 148 of the Act, 1961. He would submit that the case of the petitioner was assessed under Section 143(3) of the Act, 1961 on 20.12.2010 and that, during the course of audit of the scrutiny file, the RAP, Raipur, had raised certain objections. It is also contended that the petitioner has already approached the CIT(A) under the provisions of Section 246A(1) of the Act, 1961 and, therefore, this petition has become infructuous. He would submit that the petitioner has already availed itself of an efficacious statutory remedy and, therefore, the present writ petition is not maintainable. He would submit that this petition deserves to be dismissed.

5. I have heard learned counsel for the parties and perused the documents available on record.

6. Admittedly, the petitioner has challenged the notice issued under Section 148 of the Income-Tax Act, 1961, dated 11.3.2015. During the pendency of this petition, a reassessment order was passed on 23.3.2016, and subsequently, a statutory appeal was preferred by the petitioner assailing the said order on 12.4.2016.

7. Learned Senior Counsel appearing for the petitioner has not disputed the fact that an appeal against the reassessment order is pending before the Commissioner of Income-Tax. It is also not disputed that the reassessment order dated 23.3.2016 was placed along with the return filed on 7.9.2016. It is also an admitted fact that the petitioner has not challenged the reassessment order dated 23.3.2016 in the present petition.

8. The Hon'ble Supreme Court, in Satya Pal Anand v. State of Madhya Pradesh, reported in (2016) 10 SCC 767, held that where a party has several remedies for the same cause of action, he must elect his remedy and cannot be permitted to indulge in multiplicity of proceedings. The relevant paragraph 25 is reproduced hereinbelow:

          "25. It is a well-established position that the remedy of writ under Article 226 of the Constitution of India is extraordinary and discretionary. In exercise of writ jurisdiction, the High Court cannot be oblivious to the conduct of the party invoking that remedy. The fact that the party may have several remedies for the same cause of action, he must elect his remedy and cannot be permitted to indulge in multiplicity of actions. The exercise of discretion to issue a writ is a matter of granting equitable relief. It is a remedy in equity. In the present case, the High Court declined to interfere at the instance of the appellant having noticed the above clinching facts. No fault can be found with the approach of the High Court in refusing to exercise its writ jurisdiction because of the conduct of the appellant in pursuing multiple proceedings for the same relief and also because the appellant had an alternative and efficacious statutory remedy to which he has already resorted to. This view of the High Court has found favour with Dipak Misra, J. We respectfully agree with that view."

9. Having considered the fact that:

          (1) The statutory appeal has been pending consideration before the Commissioner of Income-Tax since 12.4.2016.

          (2) The reassessment order dated 23.3.2016 has not been challenged by the petitioner in the instant petition. and the law laid down by the Hon'ble Supreme Court in the matter of Satya Pal (supra), no case is made out for interference.

10. Accordingly, the petition is devoid of merit and is hereby dismissed.