North Eastern Electric Power Corporation Limited V. Commissioner Of Income Tax

WP(C)/279/2015

AI Insights

The case involves North Eastern Electric Power Corporation Limited (NEEPCO) challenging a notice issued by the Assistant Commissioner of Income Tax under Section 148 of the Income Tax Act, 1961, for reopening the assessment for the Assessment Year 2009-10. The petitioners argued that the reopening was unwarranted as the assessment had been completed and there was no failure on their part to disclose material facts. The respondents contended that the reopening was justified due to undisclosed material facts by the petitioners, which led to income escaping assessment. The court examined the legal provisions under Sections 147, 148, and 151 of the Income Tax Act and the circumstances under which the reassessment notice was issued.

• Counselvise Citation: [2018] 140 COUNSELVISE.COM (IT) 746592 (HC-MEGHALAYA)
• Appeal Type: Others
• Pronouncement Date: 23-10-2018
• Assessment Year: misc
• Other Referred Cases: Calcutta Discount Co. Ltd. v. Income Tax Officer, Companies District I, Calcutta and another, Commissioner of Income Tax, Gujarat v. M/s A. Raman and Co., Parashuram Pottery Works Co. Ltd. v. Income Tax Oficer, Circle-1, Ward \'A\', Rajkot, Gujarat, Associated Stone Industries (Kotah) ltd. v. Commissioner of Income Tax, Rajasthan, Commissioner of Income Tax, Delhi v. M/s Kelvinator of India Ltd.
• Laws Referred To: Income Tax Act, 1961
• Result in Favour of: Revenue
• Court: HIGH COURT
• Department Lawyers: S SAIKIA
• Assessee Lawyers: VK JINDAL; P BISWAKARMA
• Keywords: Escaped assessment; Income Tax; Jurisdiction; Notice under section 148; Reassessment
• Section: 147; 148; 143(3); 151; 226

Judgement Text

" 1 Serial No.03 Regular List HIGH COURT OF MEGHALAYA AT SHILLONG WP (C) No.279/2015 Date of Order: 23.10.2018 North Eastern Electric Power Vs. Commissioner of Income Tax & anr Corporation Limited & anr Coram: Hon’ble Mr. Justice Mohammad Yaqoob Mir, Chief Justice Hon’ble Mr. Justice S.R. Sen, Judge Appearance: For the Petitioner/Appellant(s) : Mr. VK Jindal, Sr.Adv with Ms. P Biswakarma, Adv For the Respondent(s) : Mr. S Saikia, Adv i) Whether approved for reporting in Yes Law journals etc.: ii) Whether approved for publication in press: No Per Mohammad Yaqoob Mir, ‘CJ’ 1. By medium of this petition under Article 226 of the Constitution of India, petitioners seeks quashment of notice dated 10.07.2014 issued by the Assistant Commissioner of Income Tax under Section 148 of the Income Tax Act, 1961 (hereinafter referred to as “the Act”), Note Sheet dated 25.06.2014, wherein reasons are recorded by Assessing Officer (hereinafter referred to as “A.O.”) to reopen the assessment for the Assessment Year 2009-10, and the order dated 10.08.2015 in terms whereof, objection of the petitioners as against the notice under Section 148 of the Act has been rejected. 2. The contentions of the petitioners are as under:- (i) Assessment for the Assessment Year 2009-10 under Section 143(3) of the Act has been completed. After a lapse of four years, to reopen the assessment, is unwarranted. (ii) For invoking power under Section 147 of “the Act”, the A.O. must have a reason to believe that any income chargeable to tax has escaped assessment. Then on such basis, a notice under 2 Section 148 of the Act has to be issued, notice dated 10.07.2014 has been issued but reasons to believe have not been specified therein. (iii) Income chargeable to tax must have escaped assessment for the assessment year by reason of failure on the part of the assessee. There was no failure on the part of the petitioners (assessee). (iv) After expiry of four years from the end of the relevant assessment year, if assessment has to be reopened, then in terms of Section 151 of the Act, notice under Section 148 of the Act is not to be issued by the A.O. unless Chief Commissioner or Commissioner of Income Tax is satisfied on the reasons recorded by the A.O. that the case is fit for issue of said notice. There is no such effective approval. Therefore, the mandate of Section 151 of the Act has not been complied with. 3. The contentions of the learned counsel for the respondents are that, (A) Reopening of the assessment is subject to satisfaction of two conditions as envisaged by Section 147 of the Act:- (i) A.O. must have the reason to believe that income chargeable to tax has escaped assessment. (ii) Omission or failure of the assessee to disclose fully and truly all material facts necessary for his assessment for that assessment year. The petitioners have not disclosed fully and truly all material facts, as a result whereof, income chargeable to tax has escaped assessment. (B) After expiry of four years from the end of relevant year, issue of notice under Section 148 of the Act is subject to sanction in terms of Section 151 of the Act which too is subject to satisfaction of the Chief Commissioner or Commissioner on the reasons recorded by the A.O. Requisite sanction has been granted by the Commissioner. 3 (C) Writ petition is not maintainable because the petitioners have efficacious remedies available i.e. remedy of appeal as against re- assessment before the Deputy Commissioner (Appeals), then before the Appellate Tribunal and then before the High Court under Sections 246, 253 and 260-A of the Act respectively. 4. For appreciating the respective contentions in their right perspective, precise flashback of the background of the case is imperative. Petitioner No.1, North Eastern Electric Power Corporation Limited (NEEPCO Ltd.), is a Government of India Public Sector Enterprise, incorporated under the Companies Act, 1956, under the Certificate incorporation No.1658 of 1976-77 issued by ROC, Shillong, having its registered and head office at Brookland Compound, Lower New Colony, Shillong, Meghalaya. Petitioner No.2 is the General Manager (Finance) looking after the taxation cell of the petitioner- Corporation. 5. The primary objective entrusted to the Corporation is to construct power plant and to generate electricity. 6. The petitioner-company is an assessee under the Act having permanent account No.AAACN999IJ. Petitioner-Corporation under the provisions of Section 139(1) of the Act, e-filed its original return of income on 18.09.2009 for the assessment year 2009-10 along with audit report dated 08.09.2009 as required under Section 44AB of the Act. The said return was processed under Section 143(1) of the Act on 24.03.2011. Subsequently, the said return for the Assessment Year 2009-10 was selected for regular assessment i.e. “Scrutiny Assessment” as a result whereof notice under sub-section (2) of Section 143 of the Act has been served upon the petitioner-company. For completion of regular assessment as required, the petitioner-corporation submitted books of accounts and other documents including annual reports, 3CA and 3CD reports. It was brought to the notice of the A.O. that gross expenditure of Rs.5600.48 lakhs was incurred on Tripura Gas Based Power Project upto 31.03.2009. The Ministry of Power under their letter No.7/31/2000-H.I. dated 24.11.2005 communicated the 4 decision of the Government of India to abandon the Tripura Gas Based Power Project. 7. The petitioner-company made it clear that a total amount of Rs.2581.63 lakhs for the Assessment Year 2009-10 were spent and as per mercantile practice and accounting standard 16, the said expenditure was debited to the revenue. The DCIT, Shillong Circle (A.O.) after carefully going through the same, treated the said expenditure after hearing the petitioner personally on 25.09.2010, 15.07.2011 and 15.09.2011. After taking into consideration the return of income along with acknowledgement, audit report under Section 44AB in form No.3CA, statement of particulars under Section 44AB in form No.3CD and a copy of the annual report 2008-09 of the company containing audited profit and loss account for the year ending 31.03.2009, AO accepted the contention of the petitioner-assessee as regards the treatment of the said expenditure and passed final assessment order dated 26.09.2011 under Section 143(3) of the Act. 8. After expiry of four years from the end of the relevant Assessment Year 2009-10, the A.O. (respondent No.2) issued impugned notice vide No.PAN:AAACN999IJ/256 dated 10.07.2014 under Section 148 of the Act alleging therein that the A.O. has reason to believe that income of the petitioners chargeable to tax for the Assessment Year 2009-10 has escaped assessment within the meaning of Section 147 of the Act. As such, he (A.O.) proposed to reassess the income for the said Assessment Year. Notice according to the A.O. was issued after obtaining satisfaction of the Commissioner of Income Tax. 9. In response to the notice dated 10.07.2014, petitioner-company requested the A.O. to communicate the reasons for reassessment under Section 147 of the Act after expiry of four years from the end of the relevant year. In response to said letter, A.O. conveyed to the petitioner- corporation that Income Tax department software did not accept the old return. Therefore, petitioner-corporation shall file a new return in online same was submitted i.e. filed. Thereafter, A.O. vide notice dated 02.06.2015 under Section 142(1) of the Act asked for submission of 5 books of accounts and certain other details. The petitioner-Corporation objected and requested for supplying of reasons for the purposed action under Section 147 of the Act. In response whereof, A.O. has supplied the note-sheet dated 25.06.2014 and 08.06.2015 which are purported to be the reasons for re-opening the assessment for the Assessment Year 2009-10 for the alleged escape of income from assessment. 10. The first point to be determined is as to whether the impugned notice dated 10.07.2014 under Section 148 of the Act issued by the A.O. is without jurisdiction because same is linked with the maintainability or otherwise of the petition under Article 226 of the Constitution. The power of re-opening of assessment under Section 147 of the Act on the ground that income chargeable to tax has escaped assessment for the assessment year is controlled by two exceptions: (i) reason to believe that income chargeable to tax has escaped assessment for the assessment year; (ii) assessment cannot be reopened after a period of four years from the end of the relevant assessment year unless by reason of omission or failure on the part of the assessee to disclose fully and truly all material facts necessary for his assessment. The A.O. is required to record reasons for re-opening the assessment. Thereafter, notice under Section 148 of the Act after expiry of four years from the end of the relevant assessment year cannot be issued by the A.O. unless in terms of proviso to sub-section (1) of Section 151 of the Act, the Chief Commissioner or Commissioner is satisfied on the reasons recorded by the A.O. to the effect that the case is fit for issue of such notice. 11. The contention is as to whether the assessee (petitioners) has failed to disclose fully and truly all material facts necessary for assessment, for the Assessment Year 2009-10. 12. Petitioners in the memo of the petition in paragraph 19 (ii) has stated that the petitioners-assessee has fully and truly disclosed that an expenditure on IEDC amounting to Rs.2581.63 lakhs was spent on Tuirial Hydro Electric Project during construction period and interest and finance charges were debited to the Revenue as per mercantile 6 practice. Credit on the said expenditure was claimed and allowed by the A.O. at the time of scrutiny/regular assessment. Then, in paragraph 26 of the petition, it has been stated that at the time of passing the regular assessment order,in paragraph 12 of the notes on Accounts of the 33rd Annual Report 2008-09, it was categorically stated that IEDC expenses have been charged to the Revenue in line with the Accounting Policy and in compliance of Accounting System-16. Therefore, basis were disclosed and accepted by the A.O. The fact that Tripura Gas Based Power Project was abandoned by the Ministry of Power was also disclosed. The observation of the A.O. about revival of Tripura Gas Based Power Project is wrong as the project was not revived. 13. In opposition, the respondents have made it clear that Tripura Gas Based Power Project was not revived. Record clearly reveals that Tripura Gas Based Power Project was never abandoned. The project was only kept under temporary suspension pending review by the Ministry of Power. In such a situation, all expenditure incurred on the said project which had yet to go on stream was to be capitalized. The project was subsequently revived which is clear from the letter dated 14.01.2011 written by the Deputy Secretary to the Government of India under the Ministry of Power bearing No.7/72009-H-1 addressed to the Chairman and Managing Director of NEEPCO Ltd., Shillong. The revised cost was also approved therefore, claim of deduction of capital expenditure in the nature of IEDC and interest and finance charges is devoid of merit. 14. The A.O. in his note sheet has made it clear that as per Section 36(1)(iii) of the Act “deduction is allowed” in respect of the amount of the interest paid in respect of capital borrowed for the purposes of the business or profession. Provided that any amount of interest paid in respect of capital borrowed for acquisition of an asset for extension of existing business or profession (whether capitalized in the books of accounts or not) for any period beginning from the date of which the capital is borrowed for acquisition of the asset till the date on which such asset was first put to use shall not be allowed as deduction. Then A.O. has recorded that while considering the expenditure in the nature of 7 IEDC, interest and finance charges during the construction period are exclusively capital in nature and was required to be disallowed. Further, it was found from the records that proposals have been cleared by the authorities for revival of the work projects. But in the assessment the capital expenditure was not disallowed and added back to the total income of the assessee. Hence, the disallowance of above expenditure of Rs.2581.63 lakhs has escaped assessment. On the basis of the note sheet, the A.O. had recorded that he has reason to believe that the income chargeable to tax has escaped assessment for the Assessment Year 2009- 10, ccordingly, A.O. proposed the case for re-assessment for Assessment Year 2009-10 by issuing notice under Section 148 of the Act. A.O. also mentioned that “since for four years have already lapsed therefore, the case is to be put up to the Commissioner of Income Tax for approval for issuance of notice under Section 148 of the Act.” 15. What emerge from the note sheet of A.O. is that the petitioners- assessee though had disclosed the position about the said amount but had wrongly shown it as expenditure as such, Rs.2581.63 lakhs has escaped assessment. 16. The contention of the petitioners that the petitioners had disclosed all material facts fully and truly same have been considered by A.O. while doing the final assessment, leaves no scope for re-opening. Disclosure, in view of the office note of the A.O., is not in tune with the requirement i.e. full and true disclosure. 17. True it is that the position of the account(s) which includes Rs. Rs.2581.63 lakhs was looked into by the A.O. during regular assessment which was completed. But the question is as to whether disclosure by the assessee-company for the assessment was full and true. The words “fully and truly” assume significance because disclosure of all material facts fully and truly is sine qua non. Such a situation gives rise to factual dispute which could be agitated before the A.O. who has to pass the reassessment order. Thereafter, the petitioners have remedy of appeal before the Deputy Commissioner (Appeals), then before the Appellate 8 Tribunal and then before High Court. On such count, writ petition at this stage is not maintained. 18. Another important point for consideration is as to whether notice issued under Section 148 of the Act which is impugned is without jurisdiction on the ground of absence of proper sanction. In this behalf it was contended by the learned counsel for the petitioner that sanction in terms of proviso to sub-section (1) of Section 151 of the Act has not to be mechanical, there has to be a proper application of mind which is missing. In this connection, the respondents have produced the record which reveals that the A.O. has submitted the proposal for re-opening of assessment of petitioner-Corporation for the Assessment Year 2009-10, to the Commissioner of Income Tax Shillong, vide F.No.:A- 14/Review/JCIT(R)/SHG/2013-14/583 dated 26.06.2014 wherein, the A.O. has clearly indicated as to how the expenditure towards interest and finance charges for Tripura Gas Based Power Project is of capital nature to be capitalized and not allowable as expenditure. Therefore, income chargeable to tax has escaped assessment for the year 2009-10. The said proposal as per the official noting has finally been approved by the Commissioner for issue of notice under Section 148 of the Act for the Assessment Year 2009-10. The Commissioner quite apparently as per the record has applied his mind. It is not a case of non-application of mind. The Commissioner appears to have consciously, after perusing the proposal and record, granted sanction for issue of notice under Section 148 of the Act. 19. The contention of the learned counsel for the petitioners firstly that there is absence of sanction and then sanction is without application of mind is devoid of merit. On such count, the impugned notice under Section 148 of the Act dated 10.07.2014 at this stage cannot be said to have been issued without jurisdiction. 20. Now the important question is as to whether writ petition can be maintained when efficacious remedies are available to the petitioners. In order to make it more clear, it shall be relevant to mention that after re- assessment order is passed by the A.O., as against that order the 9 petitioners have a remedy of appeal under Section 246 of “the Act” before the Deputy Commissioner (Appeals) thereafter, an appeal before the Appellate Tribunal and then in terms of Section 260A against order passed by the Tribunal before the High Court. Before the Deputy Commissioner (Appeals) and then Appellate Tribunal, the petitioners can agitate all factual as well as legal points. To sideline those efficacious remedies in the given facts and circumstances is unwarranted. 21. It is also the contention of the learned counsel for the respondents that as per the High Court of Meghalaya Rules, 2013 notified vide Notification No.HCM.II/430/2013/553 dated 27.02.2014 under Chapter- III, the petitioners were required to record an averment in the petition to the following fact:- “That the humble petitioner has no other adequate and alternative remedy and the remedy sought for is complete and adequate”. 22. In the writ petition nowhere such a paragraph has been incorporated, same has also been overlooked by filing section. The petitioners have deliberately omitted it because of being aware of the adequate alternative and efficacious remedies available under the Act. The submission on scrutiny is found to be well founded. 23. Learned counsel for the petitioners tried to project that the petition can be maintained while doing so has placed reliance on the following judgments:- (i) Calcutta Discount Co. Ltd. v. Income Tax Officer, Companies District I, Calcutta and another: AIR 1961 SC 372 (paras 6, 16 & 28); (ii) Commissioner of Income Tax, Gujarat v. M/s A. Raman and Co.: AIR 1968 SC 49 (para 6); (iii) Parashuram Pottery Works Co. Ltd. v. Income Tax Oficer, Circle-1, Ward „A‟, Rajkot, Gujarat: (1977) 1 SCC 408 (para 10); (iv) Associated Stone Industries (Kotah) ltd. v. Commissioner of Income Tax, Rajasthan: (1997) 3 SCC 323 (para 10) and (v) Commissioner of Income Tax, Delhi v. M/s Kelvinator of India Ltd.: (2010) 2 SCC 723 (paras 6 & 7). 10 24. High Court exercising jurisdiction under Article 226 of the Constitution has power to set aside a notice issued under Section 147 of the Act if the condition precedent for proceeding under Section 147 of the Act do not exist. The Court may, in exercise of its powers, ascertain whether the A.O. had reason to believe that income chargeable to tax had escaped assessment. Reason to believe as stated above exists. 25. The conditions to be satisfied for re-opening assessment of the relevant assessment year are, first is that the income tax officer must have reason to believe that the income chargeable to tax has escaped assessment, second is that A.O. must have reason to believe that escaping of assessment is by reason of omission or failure of the assessee, and omission or failure to disclose fully and truly all material facts, necessary for his assessment for the year. If A.O. had no material at all for believing that there had been non-disclosure, only then existence of alternative remedy shall not be sufficient to refuse quick relief under Article 226 of the Constitution of India. Reliance placed on the judgment reported in AIR 1961 SC 372 by the learned counsel for the petitioners is of no help to him because power invoked under Section 147 of the Act by A.O. satisfy the test as laid down. 26. Next learned counsel for the petitioners while relying on the judgment reported in AIR 1968 SC 49, contended that the writ petition is maintainable. Para 6 of the judgment is advantageous to be quoted:- “6. The High Court exercising jurisdiction under Article 226 of the Constitution has power to set aside a notice issued under Section 147 of the Income-tax Act, 1961, if the condition precedent to the exercise of the jurisdiction does not exist. The Court may, in exercise of its powers, ascertain whether the Income-tax Officer had in his possession any information: the Court may also determine whether from that information the Income-tax Officer may have reason to believe that income chargeable to tax had escaped assessment. But the jurisdiction of the Court extends no further. Whether on the information in his possession he should commence a proceeding, for assessment or reassessment, must be decided by the Income-tax Officer and not by the High Court. The Income tax Officer alone is entrusted with the power to administer the Act: if he has information from which it may be said, prima facie, that he had reason to believe that 11 income chargeable to tax had escaped assessment, it is not open to the High Court, exercising powers under Article 226 of the Constitution, to set aside or vacate the notice for reassessment on a re-appraisal of the evidence.” The conditions for exercise of power under Section 147 of the Act, for the reasons as referred to hereinabove in para 15 are fully satisfied. 27. Filing of this writ petition appears to be with a design to scuttle the process. The A.O. is yet to pass the final assessment order. It shall be totally impermissible to entertain the writ petition against the notice issued under Section 148 of the Act. True it is that where the statutory authority will not act in accordance with the provisions of the Act or acts without jurisdiction in that eventuality even though alternative remedy is available exercise of jurisdiction under Article 226 of the Constitution cannot be declined. In this connection, it shall be quite advantageous to quote paras 11, 12 and 13 of the judgment rendered by the Hon‟ble Apex Court in the case of “Commissioner of Income Tax and others v. Chhabil Dass Agarwal”: (2014) 1 SCC 603:- “11. Before discussing the fact proposition, we would notice the principle of law as laid down by this Court. It is settled law that non-entertainment of petitions under writ jurisdiction by the High Court when an efficacious alternative remedy is available is a rule of self-imposed limitation. It is essentially a rule of policy, convenience and discretion rather than a rule of law. Undoubtedly, it is within the discretion of the High Court to grant relief under Article 226 despite the existence of an alternative remedy. However, the High Court must not interfere if there is an adequate efficacious alternative remedy available to the petitioner and he has approached the High Court without availing the same unless he has made out an exceptional case warranting such interference or there exist sufficient grounds to invoke the extraordinary jurisdiction under Article 226. (See State of U.P. v. Mohd. Nooh2: AIR 1958 SC 86; Titaghur Paper Mills Co. Ltd. v. State of Orissa3: (1983) 2 SCC 433: (1983) SCC (Tax) 131; Harbanslal Sahnia v. Indian Oil Corpn. Ltd.4: (2003) 2 SCC 107; State of H.P. v. Gujarat Ambuja Cement Ltd.5: (2005) 6 SCC 499). 12. The Constitution Benches of this Court in K.S. Rashid and Sons v. Income Tax Investigation Commission6: AIR 1954 SC 207, Sangram Singh v. Election Tribunal7: AIR 1955 SC 12 425, Union of India vs. T.R. Varma8: AIR 1957 SC 882, State of U.P. vs. Mohd. Nooh2: AIR 1958 SC 86 and K.S. Venkataraman and Co. (P) Ltd. vs. State of Madras9: AIR 1966 SC 1089 have held that though Article 226 confers very wide powers in the matter of issuing writs on the High Court, the remedy of writ absolutely discretionary in character. If the High Court is satisfied that the aggrieved party can have an adequate or suitable relief elsewhere, it can refuse to exercise its jurisdiction. The Court, in extraordinary circumstances, may exercise the power if it comes to the conclusion that there has been a breach of principles of natural justice or procedure required for decision has not been adopted. [See N.T. Veluswami Thevar v. G. Raja Nainar10: AIR 1959 SC 422, Municipal Council, Khurai v. Kamal Kumar11: AIR 1965 SC 1321: (1965) 2 SCR 653, Siliguri Municipality v. Amalendu Das12: (1984) 2 SCC 436: (1984) SCC (Tax) 133, S.T. Muthusami v. K. Natarajan13: (1988) 1 SCC 572, Rajasthan SRTC v. Krishna Kant14: (1995) 5 SCC 75: 1995 SCC (L&S) 1207: (1995) 31 ATC 110, Kerala SEB v. Kurien E. Kalathil15: (2000) 6 SCC 293, A. Venkatasubbiah Naidu v. S. Chellappan16: (2000) 7 SCC 695, L.L. Sudhakar Reddy v. State of A.P.17: (2001) 6 SCC 634, Shri Sant Sadguru Janardan Swami (Moingiri Maharaj) Sahakari Dugdha Utpadak Sanstha v. State of Maharashtra18: (2001) 8 SCC 509, Pratap Singh v. State of Haryana19: (2002) 7 SCC 484: 2002 SCC (L&S) 1075 and GKN Driveshafts (India) Ltd. vs. ITO20: (2003) 1 SCC 72]. 13. In Nivedita Sharma vs. Cellular Operators Assn. of India21: (2011) 14 SCC 337: (2012) 4 SCC (Civ) 947, this Court has held that where hierarchy of appeals is provided by the statute, party must exhaust the statutory remedies before resorting to writ jurisdiction for relief and observed as follows: (SCC pp.343-45, paras 12-14) “12. In Thansingh Nathmal v. Supdt. of Taxes22: AIR 1964 SC 1419 this Court adverted to the rule of self-imposed restraint that the writ petition will not be entertained if an effective remedy is available to the aggrieved person and observed: (AIR p. 1423, para 7). „7. … The High Court does not therefore act as a court of appeal against the decision of a court or tribunal, to correct errors of fact, and does not by assuming jurisdiction under Article 226 trench upon an alternative remedy provided by statute for obtaining relief. Where it is open to the aggrieved petitioner to move another tribunal, or even itself in another jurisdiction for obtaining redress in the manner provided by a statute, the High Court normally will not permit by entertaining a petition under Article 226 of the Constitution the machinery created under the statute to be bypassed, and will 13 leave the party applying to it to seek resort to the machinery so set up.‟ 13. In Titaghur Paper Mills Co. Ltd. v. State of Orissa3 (1983) 2 SCC 433: 1983 SCC (Tax) 131 this Court observed: (SCC pp. 440-41, para 11) „11. … It is now well recognised that where a right or liability is created by a statute which gives a special remedy for enforcing it, the remedy provided by that statute only must be availed of. This rule was stated with great clarity by Willes, J. in Wolverhampton New Waterworks Co. v. Hawkesford23: (1859) 6 CBNS 336: 141 ER 486 in the following passage: (ER p. 495) “… There are three classes of cases in which a liability may be established founded upon a statute. … But there is a third class viz. where a liability not existing at common law is created by a statute which at the same time gives a special and particular remedy for enforcing it. … The remedy provided by the statute must be followed, and it is not competent to the party to pursue the course applicable to cases of the second class. The form given by the statute must be adopted and adhered to.” The rule laid down in this passage was approved by the House of Lords in Neville v. London Express Newspapers Ltd.24: 1919 AC 368: (1918-19) All ER Rep 61 (HL) and has been reaffirmed by the Privy Council in Attorney General of Trinidad and Tobago v. Gordon Grant and Co. Ltd.25: 1935 AC 532 (PC) and Secy. of State v. Mask and Co.26: (1939-40) 67 IA 222: (1940) 52 LW 1: AIR 1940 PC 105 It has also been held to be equally applicable to enforcement of rights, and has been followed by this Court throughout. The High Court was therefore justified in dismissing the writ petitions in limine.‟ 14. In Mafatlal Industries Ltd. v. Union of India27: (1997) 5 SCC 536 B.P. Jeevan Reddy, J. (speaking for the majority of the larger Bench) observed: (SCC p. 607, para 77) „77. … So far as the jurisdiction of the High Court under Article 226 - or for that matter, the jurisdiction of this Court under Article 32 - is concerned, it is obvious that the provisions of the Act cannot bar and curtail these remedies. It is, however, equally obvious that 14 while exercising the power under Article 226/Article 32, the Court would certainly take note of the legislative intent manifested in the provisions of the Act and would exercise their jurisdiction consistent with the provisions of the enactment.‟ ” (See G. Veerappa Pillai v. Raman & Raman Ltd.28: AIR 1952 SC 192, CCE v. Dunlop India Ltd.29: (1985) 1 SCC 260: 1985 SCC (Tax) 75; Ramendra Kishore Biswas v. State of Tripura30: (1999) 1 SCC 472: 1999 SCC (L&S) 295, Shivgonda Anna Patil v. State of Maharashtra31: (1999) 3 SCC 5, C.A. Abraham v. ITO32: AIR 1961 SC 609: (1961) 2 SCR 765, Titaghur Paper Mills Co. Ltd. v. State of Orissa3: (1983) 2 SCC 433: 1983 SCC (Tax) 131, Excise and Taxation Officer-cum-Assessing Authority v. Gopi Nath and Sons33: 1992 Supp (2) SCC 312, Whirlpool Corpn. v. Registrar of Trade Marks34: (1998) 8 SCC 1, Tin Plate Co. of India Ltd. v. State of Bihar35: (1998) 8 SCC 272, Sheela Devi v. Jaspal Singh36: (1999) 1 SCC 209 and Punjab National Bank v. O.C. Krishnan37: (2001) 6 SCC 569)” Applying the law as laid down by the Hon‟ble Apex Court, this petition in its peculiar facts and circumstances as stated above is not maintainable. Petitioners are free to avail the efficacious remedies as available to them. The observations made hereinabove shall remain confined to the disposal of this petition and shall be without prejudice to the rights of the parties while the matter before the A.O. or before the Appellate Authority is considered. 28. As stated hereinabove, conditions to be satisfied for re-opening assessment for the Assessment Year 2009-10, in terms of Section 147 of the Act i.e. reason to believe that the income chargeable to tax has escaped assessment, non-disclosure of material facts fully and truly by the assessee is apparent. Assertion and denial by the parties in this behalf give rise to disputed questions of fact. Notice under Section 148 of the Act has been issued after sanction under Section 151 of the Act. At this stage no breach or non compliance of sections 147,148 and 151 of the Act is forthcoming. However, it gives rise to factual dispute. There is no jurisdictional error, or lack of jurisdiction forthcoming at this stage. Against re-opening of assessment for the Assessment Year 2009-10, statutory efficacious remedies under the Act are available 15 which cannot be allowed to be sidelined, exercise of jurisdiction under Article 226 of the Constitution in the background of the factual disputes is not warranted so as to interfere with the proceedings so initiated. 29. In the background of the facts and circumstances as in detail stated hereinabove, and the law laid down by the Hon‟ble Apex Court as referred to above, the writ petition is held to be not maintainable. Petitioners have efficacious remedies available under the “Act” which they have every right to exhaust. The disposal of this writ petition, the observations made hereinabove, shall be without prejudice to the rights of the petitioners in contesting the matter before available forum including Appellate forum. 30. For stated reasons and law, writ petition is dismissed as not maintainable. No order as to costs. (S.R. Sen) (Mohammad Yaqoob Mir) Judge Chief Justice Meghalaya 23.10.2018 “Lam AR-PS” "