The Delhi High Court bench consisting of Justice Manmohan and Justice Manmeet Pritam Singh Arora held that writ petition can be filed only when statutory remedies are entirely exhausted to meet demands of extraordinary situations.
The petitioner, S K Srivastava has invoked the writ jurisdiction of this Court to quash and set aside the notice issued under Section 148 of the Act for Assessment Year (A.Y) 2016-17 and further notice issued under Section 142(1) of the Act for A.Y. 2016-17 and the order disposing of objections of National Faceless Assessment Centre. The petitioner has also challenged the order issued under Section 144 of NFAC for framing an ex-parte assessment of Writ petitioner for A.Y. 2016-17. The petitioner has submitted that the petitioner did not have any income, as defined under Section 4 and therefore was not obliged to file return under Section 139 (1). It has been further submitted that the Principal Commissioner of Income Tax (Pr CIT) had no jurisdiction over the address at Faridabad which is in the State of Haryana, on which notice under Section 148 was issued. The petitioner has also challenged the notice issued under Section 148 as the same was not served within the prescribed time. It is further submitted that NFAC is only an administrative formation and not an Income Tax Authority as defined under Section 116 of the Act and nor is it included in the definition of the Assessing Officer (A.O.) as defined under Section 2(7A) to exercise the powers of framing an assessment. The petitioner has submitted that the action of the respondents is in violation of Article 265 of the Constitution of India. The petitioner has also challenged the action of the respondents on the ground that he has not been given a physical hearing which is in violation of Section 136 of the Act as has been made mandatory by the law laid down in “Sabh Infrastructure Pvt. Ltd. Vs. ACIT’ and Tata Capital Financial Ltd. Vs. ACIT.
The High Court observed “A writ may not be entertained if the remedy provided under the Statute is substantial and not a mere formality. The petitioner stated that in the present set of facts the remedy provided under the statute is a mere formality.’
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