M/s SRG Minerals and Metals V. Assistant Commissioner of Income Tax Circle-1(1), Visakhapatnam

WP/17952/2019

AI Insights

The case involves M/s SRG Minerals and Metals, a proprietorship engaged in mineral trading, which challenged a notice under Section 148 of the Income Tax Act, 1961, issued by the Assistant Commissioner of Income Tax, Visakhapatnam. The notice was for reassessing the income for the assessment year 2012-13, based on allegations of unreported income from the sale of shares in a company implicated in providing bogus long-term capital gains. The petitioner argued that the reassessment was beyond the permissible time frame and lacked substantive reasons. However, the court found that the reassessment was validly initiated with the necessary approvals and that the petitioner had not complied with the procedural requirements to file a return in response to the notice.

• Counselvise Citation: [2019] 140 COUNSELVISE.COM (IT) 797952 (HC-ANDHRA_PRADESH)
• Appeal Type: Others
• Pronouncement Date: 24-12-2019
• Assessment Year: misc
• Other Referred Cases: Kohinoor Hatcheries Private Limited v. Deputy Commissioner of Income-Tax, Cedric De Souza Faria v. Deputy Commissioner of Income-Tax, Mahesh Kumar Gupta and others v. Commissioner of Income Tax, Tecumseh Products India Private Limited v. Assistant Commissioner of Income-Tax, Chhugamal Rajpal v. S.P. Chaliha and others, Principal Commissioner of Income-Tax v. Meenakshi Overseas Private Limited, South Yarra Holdings v. Income Tax Officer, Mumbai, GKN Driveshafts (India) Limited v. ITO, GVK Gautami Power Limited v. Assistant Commissioner of Income-Tax (OSD) and another, United Bank of India v. Satyawati Tondon, Authorized Officer, State Bank of Travancore and another v. Mathew K.C
• Laws Referred To: Income Tax Act, 1961
• Result in Favour of: Revenue
• Court: HIGH COURT
• Assessee Lawyers: CHALLA
• Keywords: Bogus Long Term Capital gain; Escaped assessment; Income Tax; Reassessment; Writ jurisdiction
• Section: 147; 148; 143(3); 151; 226

Judgement Text

"HON'BLE SRI JUSTICE RAKESH KUMAR AND HON'BLE SRI JUSTICE A.V.SESHA SAI WRIT PETITION No.17952 OF 2019 ORDER: (Per Hon’ble Sri Justice Rakesh Kumar) 1. The petitioner, who is in the business of trading in minerals and runs a proprietorship concern in the name and style of M/s. SRG Minerals and Metals, has invoked the writ jurisdiction of this Court, under Article 226 of the Constitution of India, with a prayer to issue an appropriate writ calling for the records pursuant to Notice No.ITBA/AST/S/148/2018-19/1015364617(1), dated 19.03.2019, issued from the Office of Assistant Commissioner of Income Tax Circle-1(1), Visakhapatnam, i.e., notice under Section 148 of the Income Tax Act, 1961 (hereinafter referred to as ‘the IT Act’) and a consequential order vide F.No.ACIT-1(1)/VSP/AGVPK0314L/2012- 13, dated 13.09.2019, issued by the same authority i.e., Assistant Commissioner of Income-Tax, Circle-1(1), Visakhapatnam. It has been prayed to quash the same. 2. It has been pleaded that the petitioner, for the assessment year 2012-13, had filed its return of income on 18.09.2012 declaring the total income as Rs.15,41, 278/-. The case of the petitioner was selected for a scrutiny under Computer Aided Scrutiny Selection (hereinafter referred to as ‘CASS’) and a notice was served on the petitioner. The petitioner appeared and filed its response and by assessment order, dated 10.03.2015, total tax payable by the petitioner was assessed as Rs.37,150/-, which was later paid. On RK, J & AVSS, J WP No.17952/2019 2 19.03.2019, the petitioner was served with a notice, under Section 148 of the IT Act, which is impugned herein. As per the notice dated 19.03.2019, the petitioner was informed that there was reason to believe that his income chargeable to tax for the assessment year 2012-13 had escaped assessment within the meaning of Section 147 of the IT Act and it was proposed to re-assess the income/loss. The petitioner by the said notice was asked to submit his returns within a period of 30 days in the prescribed form for the assessment year 2012-13. However, a perusal of the record reflects, the petitioner did not file its return, in compliance with the notice, dated 19.03.2019, within 30 days as stipulated therein. In stead of filing its return, the petitioner, by letter dated 28.03.2019, which is at Page No.20 of the material papers, while acknowledging receipt of the notice, asked to provide “reasons to believe” that any income chargeable to the tax had escaped assessment for the assessment year 2012-13. The said request was adhered to by the Assistant Commissioner of Income Tax vide communication contained in F.No.ACIT-1(1)/Vsp(AGVPK0314L/2019-20, letter dated 09.08.2019. The reason for reopening is reproduced hereunder: “Ït is found that the assessee Sri Naval Kishore Khaitan has sold shares of the paper company M/s Ecowave Infotech limited and received an amount of Rs.19,53,899.55/- during the F.Y. 2011-12 relevant to A.Y. 2012-13. Enquiry by the investigation wing Kolkata has revealed that the said company M/s Ecowave Infotech limited is established to provide accommodation entry of prearranged bogus long term capital gain to various beneficiaries and the assessee is one of such beneficiaries. The assessee, having received RK, J & AVSS, J WP No.17952/2019 3 Rs.19,53,899.55/- out of sale of shares of the company M/s Ecowave Infotech Limited has neither declared any capital gain nor reflected the said transaction in his return of income for the A Y 2012-13”. 3. Prior to issuance of communication, dated 09.08.2019, the petitioner, again, had filed objection to the assessment proceedings vide letter, dated 23.08.2019, and finally the present writ petition has been filed on 11.11.2019 for the prayer which has already been incorporated herein above. 4. Sri Challa Gunaranjan, learned counsel, appearing on behalf of the petitioner, has assailed the reopening proceedings on several grounds. It has firstly been argued that respondent No.2, Assistant Commissioner of Income Tax, Visakhapatnam, is having no jurisdiction for reopening of the assessment after 4 years of the last assessment, as per Sub-section 3 of Section 143 of the IT Act. While questioning the jurisdiction of respondent No.2, learned counsel for the petitioner has summarized his submission which is below: a) Section 147 in conjoint reading of Section 148 mandates that the degree of certainty of any income chargeable to tax has escaped assessment for such assessment year by reason of the failure on the part of the assessee to make a return or to disclose fully and truly all material facts necessary for his assessment is very high and it cannot be a mere fishing enquiry based on some information and the same has to reflect in the notice itself; RK, J & AVSS, J WP No.17952/2019 4 b) As four years have been lapsed from the assessment year, the impugned notice or the subsequent order should specify as to the quantum of the escaped income which is mandatory to obtain sanction under Section 151 and assume jurisdiction, without which the reassessment proceedings are without jurisdiction, hopelessly time barred and are based on incorrect and glaring factual errors; and c) The reasons to believe contain no reasons but the conclusions of the Assessing Officer allegedly basing on the information provided by the investigating wing. Indeed it is a ‘borrowed satisfaction’. 5. In respect of the aforesaid contentions, he has placed reliance on a case reported in Kohinoor Hatcheries Private Limited v. Deputy Commissioner of Income-Tax and another1 and referred to Paragraphs 10 and 11 of the said judgment and also relied on a case reported in Cedric De Souza Faria v. Deputy Commissioner of Income-Tax and others2 and referred Paragraph 12 of the said judgment. 6. Learned counsel has secondly argued that on a true and proper construction of the provisions 147, 148, 149 and 151, it is imperative that after expiry of four years, the Assessing Officer (AO) in his reasons should firstly state in categorical terms that income chargeable to tax has escaped assessment for such assessment year by reason of the failure on the part of the assessee to make a return or to disclose fully and truly all material facts necessary for his 1 [2016] 389 ITR 493 (T&AP) 2 [2018] 400 ITR 30 (Bom) RK, J & AVSS, J WP No.17952/2019 5 assessment and further in specific terms mention that the escaped income is likely to be Rs.1 lakh or more so that the Chief Commissioner or the Commissioner may record his satisfaction. The sanctioning authority must be aware that he has exercised the power of extended period of limitation under Section 149(1)(b) of the IT Act. Further, Section 149(1)(b) postulates that no notice under Section 148 shall be issued for the relevant assessment year if four years, but not more than six years, have elapsed from the end of the relevant assessment year unless the income chargeable to tax which has escaped assessment amounts to or is likely to amount to one lakh rupees or more for that year. Therefore, it is imperative that the AO, in his reasons, should also state that the escaped income is likely to be rupees one lakh or more, which is an essential ingredient for seeking the approval and satisfaction that is to be recorded by the Competent Authority under Section 151 of the IT Act. In the instant case, admittedly, the impugned notice, which was issued after four years but before six years, or the consequential order are conspicuously silent as to the quantum of the escaped income and therefore, the reasons recorded by the 2nd respondent, AO were not sufficient to initiate proceedings under Section 148 of the IT Act and hence the impugned notice is invalid. Further, when the “reasons recorded” are silent on the quantum of escapement of tax being more than one lakh, it can be definitely presumed that the sanctioning authority being not aware that he has exercised the power of extended period of limitation under Section 149(1)(b) of the IT Act. RK, J & AVSS, J WP No.17952/2019 6 7. In precise, he placed reliance on the cases reported in Mahesh Kumar Gupta and others v. Commissioner of Income Tax and another3 and Tecumseh Products India Private Limited v. Assistant Commissioner of Income-Tax and another4. It has been further argued that the important safeguards provided in sections 147 and 151 are to be strictly followed by the AO and argued that the Assessing Authority before taking any steps under section 148 was required to be satisfied on prima-facie grounds not in a mechanical manner. He further submits that the Hon’ble Supreme Court in a case reported in Chhugamal Rajpal v. S.P. Chaliha and others5, held that before issuing notice under Section 148 of the IT Act, the Income Tax Officer must have either reasons to believe that by reason of the omission or failure on the part of the assessee to make a return under Section 139 for any assessment year to the Income-Tax Officer or to disclose fully and truly all material facts necessary for his assessment for that year, income chargeable to tax has escaped assessment for that year or alternatively notwithstanding that there has been no omission or failure as mentioned above on the part of the assessee, the Income- Tax Officer has in consequence of information in his possession reason to believe that income chargeable to tax has escaped assessment for any assessment year. Unless the requirements of clause (a) or clause (b) of section 147 are satisfied, the Income-Tax Officer has no jurisdiction to issue a notice under section 148. From the report submitted by the Income-Tax Officer to the Commissioner, 3 [2014] 363 ITR 300 (AII) 4 [2014] 361 ITR 429 (AP) 5 [1971] 79 ITR 603 (SC) RK, J & AVSS, J WP No.17952/2019 7 it is clear that he could not have had reasons to believe that by reason of the assessee’s omission to disclose fully and truly all material facts necessary for his assessment for the accounting year in question, income chargeable to tax has escaped assessment for that year ; nor could it be said that he, as a consequence of information in his possession, had reasons to believe that the income chargeable to tax has escaped assessment for that year and the Income-Tax Officer had any material before him which could satisfy the requirements of either clause (a) or clause (b) of section 147. Therefore, he could not have issued a notice under section 148. Further, the report submitted by him under section 151(2) does not mention any reason for coming to the conclusion that it is a fit case for the issue of a notice under section 148, the Hon’ble Supreme Court was of the opinion that the Commissioner has mechanically accorded permission. He did not himself record that he was satisfied that this was a fit case for the issue of a notice under section 148. To question No.8 in the report which reads “Whether the Commissioner is satisfied that it is a fit case for the issue of notice under section 148”, he just noted the word “Yes” and affixed his signature there under, the Hon’ble Supreme Court was of the opinion that if only he had read the report carefully, he could never have come to the conclusion on the material before him that this is a fit case to issue notice under section 148. The important safeguards provided in sections 147 and 151 were lightly treated by the Income- Tax Officer as well as by the Commissioner. Both of them appear to RK, J & AVSS, J WP No.17952/2019 8 have taken the duty imposed on them under these provisions as of little importance. They have substituted the form for the substance. 8. It has also been argued by learned counsel for the petitioner that the AO being a quasi-judicial authority is expected to arrive at a subjective satisfaction independently on objective criteria. He wanted to persuade the Court to go into the details as to whether the petitioner had earlier declared capital gain in the return of his income or not. Learned counsel for the petitioner has canvassed as if the reason according to respondent No.2 herein for reopening the assessment proceedings is that the petitioner has not declared capital gain in the return of income and therefore as the petitioner fully and truly did not declare the material facts, re-assessment is sought to be justified. This reason of the respondent is factually incorrect as the petitioner under Schedule-EI against Item No.3 in his Return of Income “Long Term Capital Gains from transaction on which Securities Transaction Tax is paid” has clearly declared the Long Term Capital Gain (LTCG) for the Assessment Year 2012-13 as Rs.27,06,612/- which was the net gain on account of sale of 4,800 shares of M/s BSR Finance and Constructions Limited and 6,000 shares of M/s Oasis Cine Communication Limited and that as the petitioner has held these shares for more than one year, exemption from tax was sought. It is also alleged in the notice and order by the 2nd respondent that the petitioner has sold shares of the paper company M/s Ecowave Infotech Limited and that he has received an amount of Rs.19,53,899.55/-. Even this allegation of the respondents is factually incorrect in as much as the petitioner has RK, J & AVSS, J WP No.17952/2019 9 never held or purchased any shares of such company nor sold any shares of that company at any point in time and definitely not during the AY 2012-13. Therefore, it is crystal clear from the above that the reasons, which led to the 2nd respondent to form a belief that the income of the petitioner escaped assessment, are admittedly based on palpably incorrect assumptions and thus the reassessment proceedings which have been initiated based on incorrect and glaring factual errors have to be dropped. 9. Learned counsel has placed reliance on the cases reported in Principal Commissioner of Income-Tax v. Meenakshi Overseas Private Limited6 and South Yarra Holdings v. Income Tax Officer, Mumbai7. 10. In the instant writ petition, the matter was heard at length earlier and since it was emphatically argued by learned counsel for the petitioner that the impugned notice, issued under Section 148 of the IT Act, was not in consonance with Section 151 of the IT Act and as such, on 10.12.2019, learned standing counsel for Income Tax was asked to file a specific affidavit on the aforesaid point and she was also orally asked to come with the original record so that this Court may examine as to whether prior to issuance of impugned notice in terms of Section 151 of the IT Act, the Principal Chief Commissioner/Chief Commissioner/Principal Commissioner had shown satisfaction on the reasons recorded by the Assessing Officer, since notice was contemplated to be issued after expiry of 6 [2017] 395 ITR 677 (Del) 7 [2019] 263 TAXMAN 594 (Bom) RK, J & AVSS, J WP No.17952/2019 10 four years of the last assessment year. Accordingly, in compliance with the order of this Court, dated 10.12.2019, Smt.M.Kiranmayee, Learned Standing Counsel for Income-Tax, besides filing detailed counter-affidavit has also produced the original record. The original record was perused by this Court and on examination of the record this Court was satisfied that issuance of impugned notice was with the approval of the Commissioner and it was in consonance with Section 151 of the IT Act. 11. Learned Standing Counsel, besides raising objection on the merits of the case, had seriously raised a preliminary objection on the point of maintainability of the writ petition. She argued that the petitioner himself violated the conditions imposed in the impugned notice, dated 19.03.2019, since he, within 30 days of the receipt of notice, had not filed return, which was a condition precedent. She further submits that even after reopening of the case, the petitioner was having ample opportunity to take defense, during reassessment proceedings. Even after order of re-assessment, there are number of statutory remedies available to the petitioner to raise his grievance but circumventing the statutory remedy, the petitioner has straightaway invoked the extraordinary writ jurisdiction of this Court, which is to be invoked in exceptional cases. 12. According to learned standing counsel, in financial matters, if there is a statutory remedy, the High Court may refrain from interfering in a proceeding which is yet to commence. Admittedly, in the present case, notice was issued which was in consonance with RK, J & AVSS, J WP No.17952/2019 11 the provisions contained in Section 151 as well as first proviso to Section 147 of the IT Act. 13. The reason regarding escape of chargeable tax is very much evident on a perusal of the communication contained in F.No.ACIT- 1(1)/Vsp/AGVPK0314L/2019-20, dated 09.08.2019. Further, a perusal of the communication issued by the Assistant Commissioner of Income-Tax, Circule-1(1), Visakhapatnam, contained in F.No.ACIT-1(1)VSP/AGVPK0314L/2012-13, dated 13.09.2019, makes it clear that the petitioner had filed objection against reopening and by assigning detailed reason the said petition was disposed of and only thereafter impugned notice under Section 148 of the IT Act was issued. 14. Relying on a judgment of the Hon’ble Supreme Court, it has been argued by learned Standing Counsel for Income-Tax that once a notice under Section 148 of the IT Act is issued, appropriate course for a party is to first file return and ask the reason for issuance of notice. In this context, learned standing counsel has referred to Paragraph No.5 of the case reported in GKN Driveshafts (India) Limited v. ITO8. Learned Standing Counsel has also placed reliance on a judgment of this Court reported in GVK Gautami Power Limited v. Assistant Commissioner of Income-Tax (OSD) and another9 and referred to Paragraph No.37. According to learned Standing Counsel, after issuance of notice under Section 148 of the IT Act, the first thing to be done by the petitioner was to 8 [2003] 259 ITR 0019 9 [2011] 336 ITR 451 (AP) RK, J & AVSS, J WP No.17952/2019 12 file return. She further submits that it appears the petitioner wanted to buy time so that assessment order may cross the limit of six years since six years time from the last assessment order is going to expire on 31.12.2019. In stead of filing return within a period of 30 days, after receipt of the impugned notice, dated 19.03.2019, the petitioner started to file petition for assigning reason or otherwise but no return was filed by the petitioner and finally he approached this Court against the issuance of notice and consequential proceedings. 15. On merit also it has been argued that the assessment was reopened in accordance with the provisions contained in the IT Act and notice was issued under Section 148 on 19.03.2019 within a period of 6 years from the end of the relevant assessment year. For taking such steps, the Assessing Authority had reasonable reason to believe that the income chargeable to tax had escaped assessment due to the reason of failure on the part of the assessee to disclose fully and truly all material facts for assessment. The Assessing Authority has also recorded the reason to the effect that the petitioner having received a sum of Rs.19,53,899.55/- out of sale of shares of the company M/s Ecowave Infotech Limited (previous name Oasis Cine Communications Limited) had neither declared any capital gain nor reflected the said transaction in its return of income for the year 2012-13. The fact has been disclosed in the counter-affidavit that the petitioner filed the return of income for the AY 2012-13 on 18.09.2012 declaring total income at Rs.15,41,278/-. Under the head ‘Income from House Property’ the petitioner had declared an income of Rs.79,500/-, Rs.24,442,75.46/- under the RK, J & AVSS, J WP No.17952/2019 13 head ‘Income from Business or Profession’, Rs.’0’ under the head ‘Capital Gains’ and 8,77,747.11/- under the head ‘Income from Other Sources’ and claimed a total deduction of Rs.1,04,751/- U/s.80C and 80D of the Income Tax Act. The case had been selected for scrutiny under CASS for the reason that the petitioner had claimed “Large Deductions claimed U/s.57 of the Act”. Subsequently, the assessment was completed vide order dt.10.03.2015 U/s.143(3) of the IT Act, making an addition of Rs.1,00,760/- U/s.8 R/w. Section 2(22)(e) of the IT Act. During the assessment proceedings, neither there were any submissions from the petitioner as regards Long Term Capital Gains (LTCG) nor did the 2nd respondent AO had called for any information relating to the LTCG. There was no discussion on LTCG in the assessment order. Subsequent to the assessment, fresh and tangible material, mentioning all the details related to the issue of pre-arranged bogus LTCG, in the case of the petitioner was received from the Deputy Director of Income Tax, Investigation Wing, Unit 3(1), Kolkata in FY 2018-19. This fresh information contains the details of the penny stock scrip ‘M/s Ecowave Infotech Ltd’ along with the list of beneficiaries who booked bogus Long Term Capital Gains using this scrip. After careful perusal of the information, it is learnt that the trading activities as found in the above scrip are bogus in nature and the trading activities of this scrip were suspended at Kolkata stock exchange. It is also learnt that the petitioner is one of such beneficiaries who booked bogus LTCG for Rs.19,53,899.55/- during the F.Y. 2011-12 relevant to A.Y. 2012-13. On further independent RK, J & AVSS, J WP No.17952/2019 14 verification by the AO, it was learnt that no long term or short term capital gains were offered by the petitioner in the return of income i.e., the petitioner never offered LTCG on Rs.19,53,899.55/-. The AO had sufficient reason to believe that an income of Rs.19,53,899.55/- chargeable to tax has escaped assessment for AY 2012-13. Subsequently, the reasons for reopening of the assessment were duly recorded and after receiving due approvals and the sanction of the Commissioner as prescribed under the IT Act, the AO issued notice to the petitioner under Section 148 of the IT Act on 19.03.2019. The petitioner, thereafter, requested the AO to furnish the reasons recorded for reopening of the assessment. The assessing officer pursuant to the said request furnished the reasons to the assessee and the assessee filed his objections against reopening of the assessment. The Assessing Officer on receipt of objections from the assessee/petitioner, had disposed of the same vide speaking order, dated 13.09.2019. 16. Learned Standing Counsel, after referring the aforesaid facts as has been brought on record in the counter-affidavit on the basis of pleadings, submits that neither on merits there is any case nor the writ petition itself is maintainable. 17. Besides hearing learned counsel for the parties, we have minutely examined the material on record. Normally, in view of the nature of the present dispute, there was no reason to give a detailed hearing but since learned counsel for the petitioner has elaborately argued the case, both on maintainability as well as merits of the RK, J & AVSS, J WP No.17952/2019 15 case, we were persuaded to examine the same and even we perused the original record produced by learned Standing Counsel for our satisfaction as to whether the Assistant Commissioner of Income-Tax, Visakhapatnam, before reopening the assessment under the first proviso to Section 147 of the IT Act, had got approval of the Commissioner under Section 151 of the IT Act or not. On examination, we are satisfied that this was with the approval of the Commissioner and it was in consonance of Section 151 of the IT Act and as such without any apparent illegality or without a case of having no jurisdiction by respondent No.2, there is no reason to deal with the factual aspects. Otherwise also if any observation is recorded by this Court on merits of the case, certainly, it may affect either of the parties in the ensuing assessment pursuant to the impugned notice. 18. Learned Standing Counsel for the Income-Tax, appearing on behalf of the respondents, has rightly submitted that after issuance of notice under Section 148 of the IT Act, first course is to file its return. At this juncture it is appropriate to quote Paragraph No.5 of the case reported in GKN Driveshafts8, which is as follows: “5. We see no justifiable reason to interfere with the order under challenge. However, we clarify that when a notice under section 148 of the Income Tax Act is issued, the proper course of action for the notice is to file return and if he so desires, to seek reasons for issuing notices. The assessing officer is bound to furnish reasons within a reasonable time. On receipt of reasons, the notice is entitled to file objections to issuance of notice and the assessing officer is bound to dispose of the same by passing a RK, J & AVSS, J WP No.17952/2019 16 speaking order. In the instant case, as the reasons have been disclosed in these proceedings, the assessing officer has to dispose of the objections, if filed, by passing a speaking order, before proceeding with the assessment in respect of the above said five assessment years. 19. Time without number the Hon’ble Supreme Court has deprecated interference by the High Courts while exercising power under Article 226 of the Constitution of India in matters where there are statutory remedies available to the parties. Admittedly, in the present case, reassessment proceedings were initiated by issuance of notice under Section 148 of IT Act and the petitioner was granted 30 days time for filing its return. If the petitioner was oversure that it was not a case of intentional escape of taxable income on non- disclosure, the petitioner would have satisfied the Assessing Authority by way of filing its return in compliance with the impugned notice but, in the present case, except filing return, the petitioner had taken all other course such as filing of objection and invoking the writ jurisdiction of this Court. 20. If this Court interferes at the initial stage of reopening proceedings, certainly, it will amount to stay of proceedings for recovery of tax. Hon’ble Supreme Court in a case reported in United Bank of India v. Satyawati Tondon10, observed as follows in Paragraph Nos.43 and 55: “43. Unfortunately, the High Court overlooked the settled law that the high Court will ordinarily not entertain a petition under Article 226 of the Constitution if an effective 10 (2010) 8 SCC 110 RK, J & AVSS, J WP No.17952/2019 17 remedy is available to the aggrieved person and that this rule applies with greater rigour in matters involving recovery of taxes, cess, fees, other types of public money and the dues of banks and other financial institutions. In our view, while dealing with the petitions involving challenge to the action taken for recovery of the public dues, etc., the High Court must keep in mind that the legislations enacted by Parliament and State Legislatures for recovery of such dues are a code unto themselves inasmuch as they not only contain comprehensive procedure for recovery of the dues but also envisage constitution of quasi-judicial bodies for redressal of the grievance of any aggrieved person. Therefore, in all such cases, the High Court must insist that before availing remedy under Article 226 of the Constitution, a person must exhaust the remedies available under the relevant statute. 55. It is a matter of serious concern that despite repeated pronouncement of this court, the High Courts continue to ignore the availability of statutory remedies under the DRT Act and the SARFAESI Act and exercise jurisdiction under Article 226 for passing orders which have serious adverse impact on the right of banks and other financial institutions to recover their dues. We hope and trust that in future the High Courts will exercise their discretion in such matters with greater caution, care and circumspection.” 21. Obviously, learned counsel for the petitioner even though had placed facts of the case, but on examination, we do not find that the present case can be termed as an exceptional case for interference at initial stage of a reopening proceedings. Even if an order is passed after reopening pursuant to the notice, dated 19.03.2019, the petitioner will have a statutory remedy as provided in the IT Act. Recently, in a case reported in Authorized Officer, State Bank of RK, J & AVSS, J WP No.17952/2019 18 Travancore and another v. Mathew K.C11, the Hon’ble Supreme Court, while disapproving the approach of the High Court in interference at initial stage exercising jurisdiction under Article 226 of the Constitution of India, held as follows at Paragraph No.17: “17. We cannot help but disapprove the approach of the High Court for reasons already noticed in Dwarikesh Sugar Industries Ltd. V. Prem Heavy Engg. Works (P) Ltd. {(1997) 6 SCC 450}, observing: “32. When a position, in law, is well settled as a result of judicial pronouncement of this Court, it would amount to judicial impropriety to say the least, for the subordinate courts including the High Courts to ignore the settled decisions and then to pass a judicial order which is clearly contrary to the settled legal position. Such judicial adventurism cannot be permitted and we strongly deprecate the tendency of the subordinate courts in not applying the settled principles and in passing whimsical orders which necessarily has the effect of granting wrongful and unwarranted relief to one of the parties. It is time that this tendency stops.” 22. So far as Mahesh Kumar Gupta3 is concerned, on which reliance has been placed by learned counsel for the petitioner, in the said case after issuance of notice under Section 148 of the IT Act, the petitioner of that writ petition had already filed return. In Chhugamal Rajpal5 case, the Hon’ble Supreme Court was not satisfied with the reasons recorded by the Commissioner. Whereas, in the present case, we had examined the original record and also seen the reasons for satisfaction by the Commissioner and as such 11 (2018) 3 SCC 85 RK, J & AVSS, J WP No.17952/2019 19 petitioner may not get any help from the case in hand. Kohinoor Hatcheries1, Meenakshi Overseas6 and South Yarra Holdings7 cases relied on by learned counsel for the petitioner, may not be equated with the facts and circumstances of the present case. 23. So far as submissions of learned counsel for the petitioner, which we have noticed hereinabove, we are of the opinion that such question of fact may not be delve into while exercising writ jurisdiction at initial stage of reopening by the Assessing Officer. Those facts are required to be examined by the Assessing Authority and thereafter if any adverse order is passed, the petitioner is having other statutory remedy available to him. 24. In view of the aforesaid facts and circumstances, we are of the considered opinion that the prayer sought for by the petitioner in the instant writ petition cannot be acceded to and Writ Petition may not be entertained. Accordingly, the Writ Petition stands dismissed. No order as to costs. 25. As a sequel, miscellaneous petitions pending, if any, in this writ petition shall stand closed. ________________________ RAKESH KUMAR, J ________________________ A.V.SESHA SAI, J Date: 24-12-2019. Dsh "