Lulu India Shopping Mall Private Limited V. The Assessment Unit Income Tax Department National Faceless Assessment Centre, Income Tax Department, New Delhi

WP(C)/14809/2025

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Lulu India Shopping Mall Private Limited challenged the order of assessment for the year 2023-2024 under Article 226 of the Constitution of India. The petitioner had filed a return declaring 'Nil' income, which was scrutinized leading to an assessment order (Ext.P7) with six additions. The petitioner contested that two additions were made without any proposal in the show cause notice (Ext.P5) and that certain invoices presented during a video conference were not accepted by the assessing officer. The court, referencing the Supreme Court's decision in Assistant Commissioner of State Tax v. Commercial Steel Ltd., noted that the existence of an alternate remedy is not an absolute bar to a writ petition but can be entertained only in exceptional circumstances such as a breach of fundamental rights, violation of natural justice, excess of jurisdiction, or challenge to the vires of the statute. The court found no such exceptional circumstances in this case and dismissed the writ petition.

• Counselvise Citation: [2025] 140 COUNSELVISE.COM (IT) 816037 (HC-KERALA)
• Appeal Type: Others
• Pronouncement Date: 08-04-2025
• Assessment Year: misc
• Other Referred Cases: Assistant Commissioner of State Tax v. Commercial Steel Ltd., [2021 (16) SCC 447]
• Laws Referred To: Article 226 of the Constitution of India
• Result in Favour of: Revenue
• Court: HIGH COURT
• Department Lawyers: JOSE JOSEPH; CYRIAC TOM
• Assessee Lawyers: ADITYA UNNIKRISHNAN; NIVEDITA KAMATH; BINISHA BABY; SARITHA S; ARAVIND MENON; ANIL NAIR
• Keywords: Assessment Order; Income Tax; Show cause notice; Writ petition; Disputed facts
• Section: 143(3)

Judgement Text

"IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT THE HONOURABLE MR. JUSTICE BECHU KURIAN THOMAS TUESDAY, THE 8TH DAY OF APRIL 2025 / 18TH CHAITHRA, 1947 WP(C) NO. 14809 OF 2025 PETITIONER : LULU INDIA SHOPPING MALL PRIVATE LIMITED 34/1000 N.H. 47, LULU SHOPPING MALL, EDAPPALLY, ERNAKULAM, KOCHI, KERALA REPRESENTED BY ITS DIRECTOR MR. REJIT RADHAKRISHNAN, PIN - 682024 BY ADVS. ADITYA UNNIKRISHNAN NIVEDITA A.KAMATH BINISHA BABY SARITHA K.S. ARAVIND RAJAGOPALAN MENON ANIL D. NAIR (SR.) RESPONDENT : THE ASSESSMENT UNIT INCOME TAX DEPARTMENT NATIONAL FACELESS ASSESSMENT CENTRE, INCOME TAX DEPARTMENT, NEW DELHI, PIN – 110 003 SRI.JOSE JOSEPH, SR.SC SRI.CYRIAC TOM, JR.SC THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 08.04.2025, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: WP(C) NO. 14809 OF 2025 2 2025:KER:30302 BECHU KURIAN THOMAS, J. ......…............................................. W.P.(C) No.14809 of 2025 …................................................ Dated this the 8th day of April, 2025 JUDGMENT Petitioner challenges Ext.P7 order of assessment for the year 2023- 2024 under Article 226 of the Constitution of India. 2. Petitioner is running a mall in Lucknow. For the assessment year 2023-2024, petitioner had filed a return declaring ‘Nil’ income. Subsequently, the returns were taken up for scrutiny and show cause notices were issued. Pursuant to replies filed by the petitioner, the assessment was completed as per Ext.P7 after making six additions. According to the petitioner, out of the six additions, two of them have been made without there being any proposal in the show cause notice. Petitioner contends that an addition of Rs.231,71,88,992/- has been made by the assessing officer while computing income, without any reference in the show cause notice issued as Ext.P5. Further, petitioner contends that during the hearing through video conferencing petitioner had produced certain invoices, but the Officer refused to accept them. Petitioner has thus challenged the order of assessment under Article 226 of the Constitution of India. 3. I have heard Sri. Anil D.Nair, the learned Senior counsel instructed by Sri. Aditya Unnikrishnan, the learned counsel for the petitioner, WP(C) NO. 14809 OF 2025 3 2025:KER:30302 as well as Sri. Jose Joseph, the learned Senior Standing Counsel for the income tax department. 4. According to the learned Senior Counsel for the petitioner, the two additions made in the assessment order were never proposed in the show cause notice, and therefore those amounts could not have been included in the order of assessment. It was further submitted that the petitioner had even produced sufficient material to justify the query raised by the assessing officer and yet the contentions advanced were not even considered. 5. Sri.Jose Joseph, the learned Senior Standing counsel, submitted that the show cause notice had specifically referred from paragraph No.5.1 onwards regarding the unsecured loan availed by the petitioner and had called upon him to produce documentary evidence and to furnish the details of both secured and unsecured loans. It was also pointed out that the petitioner has a remedy by way of an appeal, especially in the light of the nature of the dispute, and hence Article 226 of the Constitution of India cannot be invoked. 6. Concededly, petitioner has a remedy of an appeal as per the provisions of the Act. However, petitioner has chosen to approach the court under Article 226 of the Constitution of India. The Constitution of India containing that two additions have been made without properly adverting to it in the show cause notices. The respondents do contend that sufficient reference was made in the show cause notice and the impugned order has considered the contentions advanced by the petitioner, and therefore the issue falls within the realm of disputed facts. WP(C) NO. 14809 OF 2025 4 2025:KER:30302 7. In the decision in Assistant Commissioner of State Tax v. Commercial Steel Ltd., [2021 (16) SCC 447], the Supreme Court had observed, while considering a case arising under the Goods and Service Tax Act that, though existence of an alternate remedy is not an absolute bar, still, a writ petition can be entertained only in exceptional circumstances. The following observations in the aforementioned judgment are relevant: “The respondent had a statutory remedy under section 107. Instead of availing of the remedy, the respondent instituted a petition under Article 226. The existence of an alternate remedy is not an absolute bar to the maintainability of a writ petition under Article226 of the Constitution. But a writ petition can be entertained in exceptional circumstances where there is: (i) a breach of fundamental rights; (ii) a violation of the principles of natural justice; (iii) an excess of jurisdiction; or (iv) a challenge to the vires of the statute or delegated legislation. In the present case, none of the above exceptions was established. There was, in fact, no violation of the principles of natural justice since a notice was served on the person in charge of the conveyance. In this backdrop, it was not appropriate for the High Court to entertain a writ petition. The assessment of facts would have to be carried out by the appellate authority.” 8. Having regard to the nature of contentions urged, I am of the view that apart from the issue falling within the realm of disputed facts, none of the grounds have been raised for invoking the writ jurisdiction in the instant case. WP(C) NO. 14809 OF 2025 5 2025:KER:30302 Further, since petitioner has an efficacious alternative remedy by way of an appeal against Ext.P7 order, these questions, which fall within the realm of disputed facts, cannot be considered by this Court under Article 226 of the Constitution of India. Accordingly, reserving the liberty of the petitioner to pursue its statutory remedies, in accordance with law, this writ petition is dismissed. Sd/- BECHU KURIAN THOMAS JUDGE AMV/08/04/2025 WP(C) NO. 14809 OF 2025 6 2025:KER:30302 APPENDIX OF WP(C) 14809/2025 PETITIONER'S EXHIBITS : EXHIBIT P1 TRUE COPY OF MASTER DATA OF THE PETITIONER AS EVIDENCED IN THE MCA SITE EXHIBIT P2 TRUE COPY OF AUDITED BALANCE SHEET OF THE PETITIONER COMPANY FOR THE RELEVANT ASSESSMENT YEAR EXHIBIT P3 TRUE COPY OF THE SHOW CAUSE NOTICE DATED 28.2.2025 EXHIBIT P4 TRUE COPY OF THE RELEVANT PAGES OF REPLY DATED NIL EXHIBIT P5 TRUE COPY OF THE SHOW CAUSE NOTICE DATED 12.3.2025 EXHIBIT P6 TRUE COPY OF THE RELEVANT PAGES OF REPLY DATED NIL EXHIBIT P7 TRUE COPY OF THE ORDER DATED 28.3.2025 "