M/S MAGNOLIA INFRA vs. ASSISTANT COMMISSIONER OF INCOME TAX, CENTRAL CIRCLE 2(3), AHMEDABAD

C/SCA/20152/2021 ORDER DATED: 29/12/2021 IN THE HIGH COURT OF GUJARAT AT AHMEDABAD R/SPECIAL CIVIL APPLICATION NO. 20152 of 2021 ========================================================== M/S MAGNOLIA INFRA Versus ASSISTANT COMMISSIONER OF INCOME TAX, CENTRAL CIRCLE 2(3), AHMEDABAD ========================================================== Appearance: MR DHINAL A SHAH(12077) ASSISTED BY MR.RAVI RAJ SINGH for the Petitioner(s) No. 1 MS MD MEHTA, AGP for the Respondent(s) No. 1 ========================================================== CORAM: HONOURABLE MS. JUSTICE SONIA GOKANI and HONOURABLE MS. JUSTICE VAIBHAVI D. NANAVATI

Date : 29/12/2021

ORAL ORDER (PER : HONOURABLE MS. JUSTICE SONIA GOKANI) 1. The petitioner is before this Court under Article 226 of the Constitution of India questioning the action of the respondent authority with the following prayers: “9… A. YOUR LORDSHIPS may be pleased to allow the present Petition; B. YOUR LORDSHIPS may be pleased to issue a writ of certiorari or in the nature of certiorari or any other Page 1 of 16

C/SCA/20152/2021 ORDER DATED: 29/12/2021 appropriate writ, orders or directions upon the Respondent to do duly consider the objections so filed by the Petitioner and pass appropriate adjudicatory Order either in the affirmative or in negation; C. YOUR LORDSHIPS may be pleased to issue appropriate directions upon the Respondent to abstain from passing any Assessment Order under Section 153 C of the Income Tax Act, 1961 until the objections advanced are are properly adjudicated. D. YOUR LORDSHIPS may be pleased to order Status Quo pending the hearing and final disposal of the present petition and direct the Respondent and its subordinates not to take any coercive action or act furtherance and pursuance of the impugned notice; E. YOUR LORDSHIPSmay be pleased to direct the Respondent to allow sufficient time to approach appropriate forum, if so, in case of any adverse order in regard to the Objections raised by the Petitioner; F. YOUR LORDSHIPS may be pleased to pass any further or other orders as the Hon’ble Court may deem proper in the interest of justice and in the circumstances of the case.” 2. In case of search and seizure under Page 2 of 16

C/SCA/20152/2021 ORDER DATED: 29/12/2021 Section 132 of the Income Tax Act, 1961 (‘the Act’ hereinafter) carried out at the premises of the SSS (Satyam, Sangani, Shaligram)

Group

Companies

on 06.03.2018, the satisfaction note had been recorded by the Assessing Officer on 10.03.2021 which was concerning the searched person. The respondent issued the notices under Section 153 C of the Act pursuant to the search and seizure for Assessment Years 2012-2013 to 2018-2019. After the satisfaction note was recorded by the Jurisdictional Assessing Officer of the petitioner, which is the Assistant Commissioner of Income Tax, Central Circle- 2(3), Ahmedabad on 28.05.2021, the notice came to be issued on 16.06.2021 by the respondent. The petitioner categorically requested for supplying of the copy of Page 3 of 16

C/SCA/20152/2021 ORDER DATED: 29/12/2021 satisfaction note of both the Assessing Officer i.e. the Assessing Officer of searched person and that of the petitioner. 3. On 21.06.2021 the petitioner furnished the copies of return of income along with other requisite documents and on 26.10.2021 the respondent issued further notices under Section 143 (2) of the Act for the Assessment Years 2015-2016 to 2018-2019. 4. The satisfaction note was provided on 27.10.2021 and the objections had been filed by the respondent against them on 06.12.2021. The notices came to be issued under Section 142(1) of the Act on 06.12.2021 and 23.12.2021. 5. This petition is preferred essentially Page 4 of 16

C/SCA/20152/2021 ORDER DATED: 29/12/2021 requesting the Court to direct the respondent authority to consider the objection and disposed of the same before it proceeds further relying on the decision of Commissioner of Income Tax vs. Vijaybhai N. Chandrani, reported in (2013) 35 taxmann.com 580 (SC). 5.1 It was the case where the Assessing Officer had issued the show cause notice under Section 153 C of the Act to the Assessee for reassessment of his income on the basis of the documents seized during the search conducted in the premise of another Assessee. Upon request, the Assessee was furnished the copies of documents seized from such other Assessee. 5.2 The challenge was made by the Assessee for the notices issued under Page 5 of 16

C/SCA/20152/2021 ORDER DATED: 29/12/2021 Section 153 of the Act and the High Court had held that the documents seized did not belong to the Assessee and therefore, quashed the show cause notice. 5.3 The Apex Court in a Special Leave Petition held that at the stage of issuance of notice under Section 153 C of the Act, the Assessee could have addressed his grievance and explained his stand to the Assessing Officer by filing an appropriate reply to the said notices, instead of filing the writ petition impugning the said notices. The Apex Court said that it is a settled law that alternative remedy is available to the aggrieved party, it must exhaust the same before approaching the writ Court. The Apex Court further held that the Assessee invoked the writ Page 6 of 16

C/SCA/20152/2021 ORDER DATED: 29/12/2021 jurisdiction of the High Court at the first instance without first exhausting the alternative remedies, the High Court ought not to have entertained the same and should have directed the Assessee to file reply to the said notice and upon receipt of a decision of the Assessing Officer, if for any reason it was aggrieved by the said decision, it could question before the forum provided under the Act. Thus, without expressing any opinion on the correctness or otherwise of the construction that was placed by the High Court on Section 153C of the Act, the Apex Court had set aside the judgment. 5.4 Relevant findings and observations of the Apex Court are as follow: “13.In the instant case, it transpires from the record that Page 7 of 16

C/SCA/20152/2021 ORDER DATED: 29/12/2021 the jurisdictional Assessing Authority, upon having a reason to believe that the documents seized indicate escapement of income, has issued Show-Cause Notices under Section 153C to the assessee for reassessment of his income during the assessment years 2001-2002 to 2006-2007. Thereafter, upon request of the assessee, the Assessing Authority has furnished him with the copies of documents seized under Section 132A. The assessee being dissatisfied with the said documents instead of filing his explanation/reply to the Show-Cause Notices, has filed a Writ Petition before the High Court impugning the said notices. 14. In our considered view, at the said stage of issuance of the notices under Section 153C, the assessee could have addressed his grievances and explained his stand to the Assessing Authority by filing an appropriate reply to the said notices instead of filing the Writ Petition impugning the said notices. It is settled law that when an alternate remedy is available to the aggrieved party, it must exhaust the same before approaching the Writ Court. In Bellary Steels & Alloys Ltd. v. CCT [2009] 17 SCC 547, this Court had allowed the assessee therein to withdraw. original Writ Petition filed before the High Court as the said proceedings came to be filed against the show-cause notice and observed that the High Court should not have interfered in the matter as the Writ Petition was filed without even reply to the show-cause notice. This Court further observed as follows: Page 8 of 16

C/SCA/20152/2021 ORDER DATED: 29/12/2021 "3.... In the circumstances, we could have dismissed these civil appeals only on the ground of failure to exhaust statutory remedy, but for the fact that huge investments involving the large number of industries is in issue." 15. We are fortified by the decision of this Court in Indo Asahi Glass Co. Ltd. v. ITO [2002] 254 ITR 210/122 Taxman 123 (SC) wherein the assessee had approached this Court against the judgment and order of the High Court which had dismissed the Writ Petition filed by the assessee wherein challenge was made to the show-cause notice issued by the Assessing Authority on the ground that alternative remedy was available to the assessee. This Court concurred with the findings and conclusions reached by the High Court and dismissed the said appeal with the following observations: "5. This and the other facts cannot be taken up for consideration by this Court for the first time. In our opinion, the High Court was right in coming to the conclusion that it is appropriate for the appellants to file a reply to the show-cause notice and take whatever defence is open to them." 17. In view of the above, without expressing any opinion on the correctness or otherwise of the construction that is placed by the High Court on Section 153C, we set aside the imp judgment and order. Further, we grant time to the assessee, Page 9 of 16

C/SCA/20152/2021 ORDER DATED: 29/12/2021 if it so desires, to file reply/objections, if any, as contemplated in the said notices within 15 days' time from today. If such reply/objections is/are filed within time granted by this Court, the Assessing Authority shall first consider the said reply/objections and thereafter direct the assessee to file the return for the assessment years in question. We make it clear that while framing the assessment order, the Assessing Authority will not be influenced by any observations made by the High Court while disposing of the Writ Petition. If, for any reason, the assessment order goes against the assessee, he/it shall avail and exhaust the remedies available to him/it under the Act, 1961.” 6. The case of Bajrang Tea Manufacturing Company Private Limited & Anr. vs. Union of India & Ors in W.P.A.11894 of 2021 relied upon by the petitioner also while addressing the challenge to the Assessment Order under Section 153 C read with Section 144 of the Act has considered the issue whether before passing the impugned Assessment

Orders,

the

objections/ representations of the petitioner against Page 10 of 16

C/SCA/20152/2021 ORDER DATED: 29/12/2021 initiation of the impugned proceedings under Section 153C of the Act were required to be considered or not and if not done, whether it is a violation of principle of natural justice? The Court addressed the issue and held thus: “Since in this case it appears from record that the aforesaid representations/objections of the petitioners were not considered and disposed of before passing the aforesaid impugned assessment orders an no opportunity of hearing was given to the petitioners which is a clear violation of principle of natural justice, without going into the merits. of the impugned assessment orders and the aforesaid objections/representations of the petitioners, on the ground of violation of principle of natural justice alone, I am setting aside the aforesaid impugned assessment orders dated 22nd May, 2021 being Annexure P-10 to the writ petition and remanding the case of the petitioners to the respondents concerned to consider and dispose of the aforesaid two representations/objections dated 23rd April, 2021 and 4th May, 2021 made by the petitioners in accordance with law and by passing a reasoned and speaking order and after giving an opportunity of hearing to the petitioners or their authorised representative within four weeks from the date Page 11 of 16

C/SCA/20152/2021 ORDER DATED: 29/12/2021 of communication of this order and further continuation of the assessment proceedings in question will depend upon the outcome of the final order to be passed upon the aforesaid objections/representations of the petitioners. It is recorded that this COurt has set aside the aforesaid impugned assessment orders on limited ground of violation of principle of natural justice of not considering and disposing of the aforesaid representations/objections of the petitioners and this Court has not gone into the merits of the case. In this matter, the respondent Assessing Officer will proceed strictly in accordance with law while disposing of the aforesaid representations/objections of the petitioners.” 7. It is made quite clear that where any proceedings under Section 153 C of the Act is initiated against the person, other than the searched person in whose case the power under Section 132 of the Act, the search has been carried out, is entitled to file reply/objection to the satisfaction note furnished to that person by the Jurisdictional Assessing Officer (other Page 12 of 16

C/SCA/20152/2021 ORDER DATED: 29/12/2021 than the Assessee Searched) and once those objections are furnished, a reasonable time is to be furnished. In the case of Vijaybhai N. Chandrani (supra) the Apex Court though directed alternative remedy to be resorted to, it had permitted 15 days’ time once the objections were filed and the Assessing Authority is held duty bound to consider such objections and thereafter, to direct the Assessee to file a return of Assessment year in question. Thus, giving of an opportunity is a must before proceeding against the person other than searched person after providing note of satisfaction and passing of a reasoned and speaking order after such opportunity is made available and the assessee avails such opportunity to file objection. Page 13 of 16

C/SCA/20152/2021 ORDER DATED: 29/12/2021 8. In the instant case, we could notice from the material which has been furnished and the objections were raised against the satisfaction note supplied by a speaking order and those objections have been disposed of on 27.12.2021. This Has happened subsequent to the filing of the present petition and therefore, this petition would not survive as the essential prayer was to direct the authority concerned to consider the objections. 9. At this stage, the learned advocate, Mr.Dhinal Shah has urged this Court that there are other issues to be raised on merit, which may be required to be challenged by the petitioner, however, in absence of any pleading in the present petition, if the law permits, the Page 14 of 16

C/SCA/20152/2021 ORDER DATED: 29/12/2021 petitioner will be entitled to raise them taking recourse to law. 10. Request of one week time is made to reply to the final show cause notice dated 27.12.2021 which has been issued after disposing of the objections, as the apprehension on the part of the petitioner is of framing of the Assessment on or before 31.12.2021 and the demand raised in the last show cause notice has been almost doubled. 11. Noticing the disposal of the objections on 27.12.2021 and issuance of demand on 27.12.2021 itself, the petitioner shall be at liberty to make a request to the authority concerned of grant of reasonable time of minimum one week for him to reply and let the same be considered by the Page 15 of 16

C/SCA/20152/2021 ORDER DATED: 29/12/2021 authority concerned. As this petition is disposed of without issuance of notice in the circumstances mentioned above which developed during pendency, petition is though not entertained, request to permit the adjournment before the Assessing Officer is permitted considering the date of disposal and final show cause notice. 11. With

the

above

direction

and observation, present petition stands disposed of accordingly. 12. Over and above the regular mode of service, direct service is permitted through speed post as well as e-mode. (SONIA GOKANI, J) (VAIBHAVI D. NANAVATI,J) M.M.MIRZA Page 16 of 16