When A Statutory Forum Is Created For Grievance Redressal, Writ Petition Cannot Be Entertained: J&K&L High Court
The Jammu and Kashmir and Ladakh High Court has held that when a statutory forum is created by law for redressal of grievances, a Writ Petition cannot be entertained ignoring the statutory dispensation.
In that context, the Division Bench of Justice Mohd. Akram Chowdhary and Justice Ali Mohammad Magrey observed that "…the Act of 2015 (Black Money (Undisclosed Foreign Income and Assets) and Imposition of Tax Act, 2015) provides complete machinery for the person aggrieved of any action taken by the Assessing Officer and the said person could not be permitted to abandon that machinery and to invoke the jurisdiction of the High Court under Article 226 of the Constitution when he had the adequate remedy open to him by way of an appeal to the Commissioner of Appeals.".
The Court noted that the assessee may lose a remedy of having the matter considered on factual facets of the matter and also stand deprived of regular channels of challenges available to it under the hierarchy of fora available under the scheme of the Act.
The Court made this observation while dealing with a batch of writ petitions assailing the validity of the notices issued by the Respondent-assessing authority under Section 10 (1) of the Black Money (Undisclosed Foreign Income and Assets) and Imposition of Tax Act, 2015 as also show cause notices.
The Petitioners had also challenged the penalty notices, assessment orders and demand notices issued by the Respondent-assessing authority.
In the three writ petitions filed before the Court, the Petitioners, namely, Tabasum Mir and Amir Mir contended that they were beneficiary of a Trust which was created and established abroad. Petitioner Abdul Rashid Mir & Ors., contended that their predecessor-in-interest- Sabeha Mir, is a beneficiary of the said Trust.
These Petitioners brought benefit/money of their share in the country upon permission granted by the Reserve Bank of India.
In the meantime, Black Money (Undisclosed Foreign Income and Assets) and Imposition of Tax Act, 2015 (Act of 2015) was enforced. In view of the said Act, a notice under Section 10(1) and thereafter under Section 10(2) were issued requiring certain information from the Petitioners and from the predecessor-in-interest of the petitioners.
The said notice was duly replied by the Petitioner, but till date, no order of assessment as contemplated under Section 10 was passed against the Petitioner.
At the same time, a further show cause notice dated March 18, 2021 was issued requiring them to show cause why in respect of some of the assets, they should not be taxed under the Act and penalties and prosecution be launched against them.
It is averred that the aforesaid show cause notice is neither a notice issued under Section 10 nor a notice under any other provisions of the Act and, as such, is without jurisdiction.
When these Petitions came up for consideration before the High Court, the Court, had directed the assessing authority to proceed and pass an order of assessment pursuant to the show cause notices. However, the Court had directed the authority to not prosecute and impose any penalty upon the petitioners on the basis of the impugned show cause notice.
However, the assessing authority proceeded ahead and passed the assessment order as well as the notice of imposing penalty upon the Petitioners.
Feeling aggrieved, petitioners approached High Court.
Senior Advocate P. Chidambaram appeared for the petitioners whereas Tahir Majid Shamsi, DSGI with Advocate Nazima Yaqoob appeared for the Union of India and Advocate Areeb J. Kawoosa appeared on behalf of the other Respondents.
The Counsel for Respondents had contended that the Writ Petitions were not maintainable before the Court on the ground that the Petitioners were having the statutory remedy of appeal before the Commissioner (Appeals) in terms of Section 15 of the Act of 2015.
The Court noted that Section 15 (1) (b) and (c) of the Act of 2015 clearly stipulates that any person denying his liability to be assessed under the Act of 2015 or objecting to any penalty imposed by the Assessing Officer may appeal to the Commissioner of Appeals.
The Court observed that "In the case in hand, admittedly, the Petitioners deny their liability to be assessed under the Act of 2015 with reference to the foreign asset having been acquired by them out of income not taxable in India. The Petitioners, in their pleadings before this Court, have not only averred that they not liable to be assessed under the Act of 2015, but they have also questioned the various factual aspects of the matter qua computation of the income and tax payable by the Assessing Officer."
The Court noted that if these submissions of the Petitioners are accepted by the Court while exercising powers under Article 226 of the Constitution, every time the factual aspects/ disputes will be required to be taken up in proceedings such as a Petition filed under Article 226 of the Constitution which normally would not be entertained in case of any questions of fact.
"All the contentions of the Petitioners, as raised in these Petitions, including the issue of jurisdiction, applicability or otherwise of the act, can very conveniently be dealt with by the Appellate Authority in tune with the mandate of Sections 15 and 17 of the Act of 2015.", the Court held.
Therefore, the Court declared the writ petitions as not maintainable in view of the statutory remedy of appeal being available to the Petitioners in terms of the mandate of Sections 15 and 17 of the Act of 2015.
However, the Court granted liberty to the Petitioners to avail the aforesaid statutory remedy of appeal against the proceedings initiated against them within one month.
The Court directed the appellate authority to consider the same on merits without making any reference to the period of limitation and, directed that till then, no punitive action shall be taken against the Petitioners if such appeal is filed within the time granted by the Court.
Cause Title- Tabasum Mir v. Union of India & Ors. with Connected Matters