SESA STERLITE LIMITED THROUGH ITS ATTORNEY MR. BENICIO MENEZES vs. THE ASSISTANT COMMISSIONER OF INCOME TAX AND 2 ORS.,

1 IN THE HIGH COURT OF BOMBAY AT GOA WRIT PETITION NO. 259 OF 2014 SESA STERLITE LIMITED THROUGH ITS ATTORNEY MR. BENICIO MENEZES ... Petitioner Versus THE ASSISTANT COMMISSIONER OF INCOME TAX AND 2 ORS.

... Respondents Mr. R.G. Ramani, Advocate for the petitioner. Ms. Asha Dessai, Advocate for the Respondents. Coram:- F.M. REIS & Z.A. HAQ, JJ. Date:- 6

th May, 2014

ORAL ORDER: Heard Mr. Ramani, learned Counsel appearing for the petitioner and Ms. Dessai, learned Counsel appearing for the respondents, and gone through the record. 2. The challenge in the above petition is to the show cause notice initially issued on 03.02.2014 and a subsequent notice issued on 02.04.2014 by respondent no. 1 to the petitioner. 3. It is not in dispute that pursuant to the first show cause notice dated 03.02.2014, the petitioner has filed a reply. Respondent no. 1 has arrived at a tentative opinion in connection

2 with the said show cause notice and by a subsequent notice dated 02.04.2014, the respondent no. 1 has sought for further particulars with regard to the averments made in the said earlier reply. 4. Learned Counsel for the petitioner states that reply filed by petitioner to the show cause notice dated 03.02.2014 has not been accepted by respondent no. 1 and as such the subsequent notice dated 02.04.2014 has been issued to the petitioner by respondent no.1. 5. Learned Counsel Ms. Dessai on the other hand states that the first show cause notice dated 03.02.2014 has not yet been decided and only a tentative opinion has been arrived at and would be examined after an overall view is taken in the matter. 6. Learned Counsel Mr. Ramani has pointed out that respondent no. 1 has prejudged the matter and as such, giving any further reply would be an act of futility. The learned Counsel for the respondents states that the said contention cannot be accepted. 7. It is not in dispute that the petitioner has also made a representation dated 21.04.2014 to the Commissioner of Income

3 Tax at Panaji. The learned Counsel for the respondents, on instruction states, that the said representation has not been disposed of and is under consideration before the concerned Authority. 8. As the matter has not yet been decided by the respondent no. 1 and only a show cause notice has been issued to the petitioner and, thereafter, subsequent notice for further particulars to examine the show cause notice dated 03.02.2014, we find that it would not be appropriate to entertain the above writ petition to examine the correctness of the show cause notice issued by respondent no. 1. 9. In this connection, the Apex Court in the judgment reported in AIR 2013 SC 3518, in the case of Commissioner of Income Tax, Gujarat Vs. Vijaybhai N. Chandrani has observed at paragraph 16 thus: “16. In the present case, the assessee has invoked the writ jurisdiction of the High Court at the first instance without first exhausting the alternate remedies provided under the Act. In our considered opinion, at the said stage of proceedings, the High Court ought not have entertained the Writ Petition and instead should

4 have directed the assessee to file reply to the said notices and upon receipt of a decision from the Assessing authority, if for any reason it is aggrieved by the said decision, to question the same before the forum provided under the Act.”