The main legal point established in the judgment is the requirement to exhaust statutory remedies before availing remedy under Article 226 of the Constitution, especially in matters involving recovery of public dues.

JUDGMENT

(Prayer: Writ appeal is filed under clause 15 of the Letter Patent praying to set aside the order dated 13.09.2022 made in W.P.No.2810 of 2020 and allow this writ appeal.)

Mohammed Shaffiq, J.

The writ appeal is filed challenging the order of the learned Single Judge rejecting the writ petition in W.P.No.2810 of 2020 dated 13.09.2022 whereby the challenge to the order of the assessment under Section 144 of the Income Tax Act, 1961, (hereinafter referred to as “the Act”) on the ground that the same is without jurisdiction

2. There was a search of the petitioner/ assessee’s residence and office from 21.12.2019 to 23.12.2019. It was submitted that in in view of the proviso to Section 153(1) of the Act, the limitation ought to be reckoned in terms of Section 153(1) of the Act i.e., 21 months from the end of the assessment year in which the income was first assessable under Section 153 of the Act. The impugned orders of assessment was thus submitted to have been barred by limitation.

3. It was further submitted by the learned counsel for the appellant that the assessing officer is not the jurisdictional officer vested with the authority to pass an order of best judgment under Section 144 of the Act.

4. The order of assessment was also challenged on the premise that it suffers from violation of principles of natural justice inasmuch as the order of assessment does not even refer to the reply dated 27.12.2019, which was received by the 2nd Respondent personally which was also sent through post. The appellant has also submitted another reply dated 28.12.2019 which was received by the 2nd Respondent through RPAD on 30.12.2019, however the impugned order of assessment has been passed by the assessing officer without applying his mind to the said objections.

5. The learned Judge had however rejected the challenge to the orders of assessment and had proceeded to hold that there is no infirmity in the impugned order of assessment, the relevant portions of the order reads as under:

“3. A show cause notice dated 19.12.2019 was issued fixing the date of personal hearing on 23.12.2019 at 21.12.2019, for the first time, in addition 11.30 a.m. On the statements that had been sought on 24.10.2019, the petitioner sought a copy of his Savings Bank account statement in Vijaya Bank. The bank statements have, admittedly, been supplied to the petitioner, as acknowledged by the petitioner in his letter dated 28.12.2019.

4. On 24.12.2019, the Assessing Authority has issued yet another show cause notice drawing the attention of the petitioner to the fact that none of the sworn statements recorded in the course of search nor any seized material have been relied upon by the Income Tax Department in the on-going reassessment proceedings and hence the request of the petitioner for such sworn statements as well as a request for personal hearing of the persons mentioned in the letter of the petitioner, cannot be acceded to.

5. It is relevant to note that till 21.12.2019, absolutely no submissions have been made on the merits of the matter and the petitioner has been only reiterating his request for documents. For the first time on 27.12.2019, even without filing a return of income pursuant to search conducted in his premises on 22.02.2019, 23.02.2019 and 24.02.2019, he puts forth an explanation for that substantial cash deposits that have been made in the savings bank account, stating that such deposits relate to transaction in connection with the property situated at Vellore Bus stand.

6. Both the replies of the petitioner dated 24.10.2019 and 27.12.2019 are especially incriminating insofar as they refer to the involvement of heavy cash transactions in respect of the vellore property. the cash deposits. Incidentally, a vague statement is made that the cash deposits were in the course of usual business transaction. In the absence of any return of income filed by th