W.A.Nos.2759 & 2766 of 2023

IN THE HIGH COURT OF JUDICATURE AT MADRAS

DATED 18.10.2023

CORAM

THE HON'BLE Mr. JUSTICE R. MAHADEVAN

AND

THE HON'BLE Mr. JUSTICE MOHAMMED SHAFFIQ

W.A.Nos.2759 & 2766 of 2023

AND

C.M.P.Nos.23176 & 23237 of 2023

Shapoorji Pallonji Solar Holdings Private Limited

(Merged with Shapoorji Pallonji Infrastructure

Capital Company Private Limited)

Rep. by its Power of Attorney Holder Ritesh Dedhia

SP Centre, 41/44, Minoo Desai Marg

Colaba, Mumbai 400 005

.. Appellant

in both W.A.s

Vs.

1.The Income Tax Officer

Income Tax Department

National Faceless Assessment Centre

Ministry of Finance

Room No.401, 2^nd Floor, E-Ramp

Jawaharlal Nehru Stadium

Delhi 110 003

2.The Deputy Commissioner of Income Tax

Corporate Circle 3(1)

Ayakar Bhavan, Nungambakkam

Chennai 600 034

.. Respondents

in both W.A.s

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W.A.Nos.2759 & 2766 of 2023

Writ Appeals filed under Clause 15 of the Letters Patent, against the

common order dated 29.03.2023 passed by the learned Judge in

W.P.Nos.9142& 9145 of 2023.

For Appellant

in both W.A.s

: Mr.Vijay Narayan

Senior Counsel for

Mr.Rahul Unnikrishnan

For Respondents

in both W.A.s

: Mr.R.S.Balaji

Senior Standing Counsel

assisted by

Mr.S.Premalatha

COMMON JUDGMENT

(Judgment of the Court was delivered by R. MAHADEVAN, J.)

Challenging the common order dated 29.03.2023 passed by the learned

Judge in W.P.Nos.9142 and 9145 of 2023, dismissing the writ petitions holding

that there was no extraordinary circumstance to intervene with the assessment

order dated 28.12.2022 passed by the assessing authority and it is for the writ

petitioner to pursue the statutory appeal that was filed in January 2023, the

present writ appeals have been preferred by the writ petitioner before this

Court.

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W.A.Nos.2759 & 2766 of 2023

2.The above two writ petitions have been filed by the appellant herein

against the assessment order and the demand notice. It was contended before

the learned Judge on the side of the appellant that the order of assessment

proposed variation under the faceless assessment scheme and in view of the

observation that the appellant was not entitled to long term capital loss, the

order has travelled beyond the scope of show cause notice thus violating

Section 144B(1)(xii) of the Income-tax Act, 1961. The impugned show cause

notice has been issued in direct contravention of the provisions of the Act read

with the rules, having regard to the fact that the impugned notice fails to

provide for refund of the amount that the appellant is entitled to. The impugned

assessment order as well as the show cause notice have been issued wholly

without jurisdiction and hence, the same are liable to be set aside. It was also

contended that the order passed by the authority ignores the well established

position that once there is a notice proposing variation, a new variation cannot

be sought to be made in the final order. The fact remained that the appellant has

challenged the impugned order of assessment by way of statutory appeal in

January 2023. Thus, holding that remedy under Article 226 of the Constitution

of India constitutes an extraordinary remedy, but in the present case, it has been

resorted to only as an afterthought and that, no extraordinary circumstances are

available, the learned Judge rejected the writ petitions filed by the appellant

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W.A.Nos.2759 & 2766 of 2023

herein. Challenging the common order passed by the learned Judge, the

appellant has preferred these present appeals.

3.The learned senior counsel appearing for the appellant has submitted

that the learned Judge, by holding that the appellant was entitled to pursue the

statutory remedy, has failed to take into consideration the ground raised by

them that the assessment order was passed in violation of Section 144B of the

Income-tax Act. The