Sufficiency/ correctness of material relied by AO for re-opening not to be considered

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Pavan Kishanchand Tulsiani Vs Union of India (Gujarat High Court)

Gujarat High Court held that when AO has reason to believe and have prima facie material for commencement of re-assessment proceedings, sufficiency/ correctness of the material is not a thing to be considered. Reopening justified.

Facts- Petitioner is a Director / Partner in various firms and derives income from various sources. A notice dated 30.3.2018 u/s. 148 was issued for re-assessing the income and called upon the petitioner to file his return of income in the prescribed form for the said assessment year. On 29.8.2018, the assessee filed the reply denying about the income having escaped assessment and contending original income of return is once again offered as income in the return of income filed in response to the notice issued under Section 148 of the Act. Petitioner sought for reasons supporting the action of re-opening of the assessment / re-assessment. By communication dated 17.9.2018, the reasons for re-opening the assessment came to be provided. Petitioner appeared before the respondent authority and also made oral as well as written submissions raising several contentions and specifically contending the assessment proceedings could not be re-opened after 6 years and that too without any justification and sought for dropping of the proceedings. The contentions raised in the notice for re-opening came to be reiterated.

Conclusion- Hon’ble Apex Court in the case of D.N. Jeevaraj Vs. Chief Secretary, Government of Karnataka and others (2016) 2 SCC 653 propounding that High Court/ Constitutional Court in exercising its extraordinary jurisdiction cannot usurp the discretion of a statutory authority unless it believes that such an authority will not be able to exercise discretion on account of some inability. In the instant case, we find no such eventuality has arisen to assume that authority will not examine or petitioner will not have any opportunity to put forth his case during the proceedings post-issuance of notice impugned in the petition.

When there is relevant material on which a person of reasonable pru-dence would have formed the belief of such escapement, it would suffice and in the instant case, the above material is sufficient enough to arrive at such a conclusion. The sufficiency of the material would be good enough for the authority to clutch the jurisdiction for commencement of re­assessment proceedings. However, the sufficiency or correctness of the material would not be in the realm of consideration at this stage. Thus, where the Assessing Officer has reason to believe and there is prima facie material for commencement of re-assessment proceeding, sufficiency or correctness of the material is not a thing to be considered at that stage and the correctness or otherwise of the reasoning recorded for re-opening of the assessment would not be in the realm of adjudication by going into merits of the said reasoning.

FULL TEXT OF THE JUDGMENT/ORDER OF GUJARAT HIGH COURT

1. These three Special Civil Applications are filed by same as-sessee and on account of issue involved being common these Special Civil Applications are taken up together for consideration and disposed of by this common judgment by narrating the facts of each case chronologically hereinbelow.

2. Petitioner seeks to challenge the legality of re-opening of the assessment in all these petitions by issuance of impugned notices and passing of the impugned orders raising several contentions.

RE: SCA No. 19274 OF 2018

Petitioner is a Director / Partner in various firms and derives income from various sources. For the Assessment Year 2011-12, petitioner filed the return of income by declaring his income to the tune of Rs.1,00,85,160/- and paid tax to the tune of Rs.33,45,909/-. A notice dated 30.3.2018 under Section 148 of the Income Tax Act, 1961 (‘the Act’ for short) was issued for re-assessing the income and called upon the petitioner to file his return of income in the prescribed form for the said assessment year. On 29.8.2018, the as-sessee filed the reply denying about the income having escaped assessment and contending original income of return is once again offered as income in the return of income filed in re-sponse to the notice issued under Section 148 of the Act. Petitioner sought for reasons support-ing the action of re-opening of the assessment / re-assessment. By communication dated 17.9.2018, the reasons for re-opening the assessment came to be provided. Petitioner ap-peared before the respondent authority and also made oral as well as written submissions rais-ing several contentions and specifically contending the assessment proceedings could not be re-opened after 6 years and that too without any justification and sought for dropping of the proceedings. The contentions raised in the notice for re-opening came to be reiterated and or-der dated 26.11.2018 came to be passed which came to be communicated and received by pe-titioner on 05.12.2018 and surprisingly, yet another notice was served upon petitioner dated 06.12.2018 directing the petitioner to remain present for further hearing on 12.12.2018 and conveyed that in no circumstance, adjournment would be granted. Petitioner accordingly, rep-resented before the authority, but then, was constrained to challenge the legality and validity of the impugned notice dated 30.03.2018 as also the impugned order dated 26.11.2018. In the preliminary hearing which took place before the co-ordinate Bench of this Court, while issuing notice this Court has passed an order on 12.12.2018 which reads as under :

“1. Mr. S.N. Soparkar, Senior Advo-cate, learned counsel with Mr. Abhishek Mehta, learned advocate for the petitioner invited the attention of the Court to the reasons recorded for reopening the assessment for the assessment year 2011-12, to submit that the Assessing Officer seeks to reopen the assessment of the peti-tioner in connection with purchase of the land bearing Block No.438 and 439 paiki 2 and Block No. 706 situated at Dumas. It was pointed out that, in the reasons recorded itself, the Assessing Officer has recorded that both the lands bearing Block No.438 and 439 paiki 2, have been purchased by M/s. R.P. Associates of which the petitioner was a partner. It was further pointed out that, insofar as the Block No. 706 at Dumas is concerned, the Assessing Officer has recorded that the petitioner’s firm, M/s. A.R. Enterprise, has paid Rs.18 Crores (rounded off) out of the books, which can be treated as unaccounted investment of the petitioner’s firm, M/s. A.R. Enterprise, for the financial year 2013­14. It was submitted that, therefore, even ac-cording to the Assessing Officer land of Block No.438 and 439 paiki 2 had been purchased by M/s. R. P. Associates, and land bearing Block No. 706 at Dumas was purchased by M/s. A.R. Enterprise. It was submitted that when the purchases were made by the firm, the Assessing Of-ficer is not justified in seeking to reopen the assessment of the petitioner. It was submitted that, on the reasons recorded, the Assessing Officer could not have formed the belief that income chargeable to tax as escaped assessment in the case of the petitioner.

2. Having regard to the submissions advanced by the learned advocate for the petitioner, issue NOTICE returnable on 29.1.2019. By way of ad-interim relief, the respondent may proceed further pursuant to the impugned no-tice; he, however, shall not pass the final order without the permission of this Court. Direct service is permitted today.”

REASONS ASSIGNED FOR REOPEN-ING ASSESSMENT

4. The reasons for re-opening the assessment was: During the search proceedings conducted in the case of Mr. Piyush G. Modi, vital documents were found and seized and relevant information derived therefrom disclosed that suada chitthi of land bearing Block Nos. 438, 439 paiki 2 dislcosed that said land was sold by Mr. Ramesh P. Bhadani to the assessee, admeasuring 22870 square yards for a consideration of Rs.32,24,89,000/- and the said sauda chitthi also disclosed that assessee held ownership right in house No. 3 of Union Point, Ghoddod Road, Surat, admeasuring 10000 square feet and the rate of Rs.1,515 per feet was decided between assessee and Mr. Ramesh P. Bhadani and thus, total price of the property came to Rs.15,15,10,000/-. As per sauda chitthi, assessee sold his property No. 3 to Mr. Ramesh P. Bhadani in lieu of payment against the purchase of the land of Block Nos. 438, 439 paiki 2, Dumas and the value of the property of Ghoddod Road was separated from the total of Rs.32,24,89,000/- and was decided that balance amount of Rs. 17,09,79,000/- will be paid to Mr. Ramesh P. Bhadani. The payment schedule was also indi-cated in the sauda chitthi. During the assessment proceeding, the Assessing Officer gathered that both the lands were purchased by R.P. Associates in which the assessee was one of the partners and House No. 3 was purchased by M.B. System in which Mr. Ramesh P. Bhadani was one of the partners.

5. It was also found that the assessee had made payment in cash sum of Rs. 6,11,00,000/- on various dates to Mr. Ramesh P. Bhadani for purchase of the land Block Nos. 438 and 439 paiki 2. In fact, the statement of assessee was recorded on 16.5.2014 whereunder assessee admitted that unaccounted cash has been paid for purchase of both the above lands and expressed his opinion that for fear of payment of taxes, he did not state correct amount of unaccounted cash paid. In this background, the Assessing Officer was of the view that said cash payment amounting to Rs.6,11,00,000/- by the assessee in lieu of purchase of the said two lands remained unexplained.

6. During the search of the residence of Mr. Piyush Modi, a sauda chitthi made between assessee as a seller and Mr. Dilip C. Sojitra as purchaser was also found and as a consequence of said search, a survey came to be conducted at the office and factory premises of the assessee. On being confronted with said sauda chitthi (Annexure-A2) dated 23.10.2010, the assessee admitted the same and identified the signature and explained that land Block No.706, situated at Dumas, admeasuring 15972 square yards was decided to be sold to Mr. Dilip Sojitra at the rate of Rs.10,602 per yard and admitted to have received Rs.11,00,000/- as advance. He also admitted that land pertains to navi sharat and agreed that it cannot be sold without altering into juni sharat. He stated that the deal was cancelled and once again the assessee decided to sell his land at the rate of Rs.14,589 per square yard for which Rs.51,00,000/- was advanced by Mr. Dilip Sojitra and stated that his firm M/s. A.R. Enterprise owned the said land. Hence, the Assessing Officer was of the view that the land was purchased by assessee in the name of A.R. Enterprise at an amount of Rs.5,12,83,200/- and was being sold for Rs.23,30,15,508/-and as such the purchase price of land cannot be relied upon and was of the view that price of the same amount cannot be less than that of price 2 years before. Hence, he held that assuming that land has been purchased at an amount of Rs.23,30,15,508/- and registration is made only at jantri price decided by the government which is much before actual sale transaction and was of the view that difference amount will be paid by cash by the purchaser. He was also of the view that in the sauda chitthi the actual sale price of the land will be returned since it is an informal document between purchaser and seller and between period 2010 to 2013 the land prices in Surat had increased substantially in Dumas area. Hence, the Assessing Officer was of the view that firm A.R. Enterprise of which assessee had partner, was paid Rs.18,17,32,308/- out of books and same is to be treated as unaccounted investment of assessee’s firm A.R. Enterprise. As sauda chitthi dated 9.2.2011 disclosed that a purchaser has to pay 25% of the total on-money amount on 9.2.2011 and thereby unaccounted investment of the assessess amounting to Rs.4,54,33,077/- (25% of Rs.18,17,32,308/-) and thus for the aforesaid two reasons which was based on the investiga-tion report received from DCIT, Central Office, Circle 2, Surat, the Assessing Officer was of the view that assessee had paid on-money in the form of cash in lieu of purchase of land bear-ing Block Nos. 438 and 439 paiki 2 in the source of cash remained unexplained and required to be added in total income of the assessee and the statement dated 16.5.2014 given by the as-sessee whereunder he had admitted to have made investment amounting to Rs.5,54,33,077/- for purchase of the land Block No.706 at Dumas which remained unexplained and required to be added to the total income of the assessee and has to be brought within the ambit of taxation and believing that same had escaped assessment within the meaning of Section 147 of the Act, notice came to be issued on the ground that transaction made by the assessee remained unex-plained and income chargeable to tax had escaped income within the meaning of Section 147 of the Act and as such sought for re-opening of the assessment. Since 4 years had lapsed from the end of the relevant assessment year, sanction under Section 151(1) of the Act to issue notice was obtained from the Principal Commissioner of Income Tax and thereafter the proceedings have been initiated and order passed rejecting the objection raised by the assessee.

RE: SCA No. 22818 of 2019 and SCA No. 22815 of 2019

7. For the Assessment Year 2012-13 and 2013-14, assessee filed the return of income. Notice dated 30.3.2019 came to be issued by the authorities to as-sess / re-assess the income / loss for the respective assessment years and directed the petitioner to file his return of income in the prescribed form. Pursuant to the same, the return of income came to be filed and reiterated that original return of income filed be treated as one filed pur-suant to notice. Petitioner also sought for reasons for re-opening of the assessment and thereaf-ter respondent No.3 by way of a letter dated 8.5.2019 provided the reasons for re-opening which is similar and identical to the reasons assigned for the Assessment Year 2011-12. Hence, learned advocates appearing for the parties have reiterated the contentions and pleas ad-vanced in Special Civil Application No.19274 of 2018 being similar and identical to the pre-sent Special Civil Applications.

8. Later on, petition has come up for consideration before this Court in which Mr. Saurabh Soparkar, learned Senior Advocate assisted by Mr. Abhishek Me-hta, has represented the petitioner and Mr. Nikunt Raval, learned advocate for Ms. Kalpana Raval, has represented the contesting authority namely respondents 2 and 3.

9. Mr. Soparkar, learned Senior Advocate has vehemently con-tended that first of all the very issuance of impugned notice itself is unreasonable, high handed and arbitrary act of the respondent authority. Though full disclosure in true sense, income tax return for Assessment Year 2011-12 has been filed and though there was no circumstance or justification, after a period of six years, i.e. in the year 2018, the authority initiated the stand of reopening of assessment on thoroughly unjustified ground and there is no justification at all to initiate proceedings under Section 142 of the Income Tax Act. Mr. Soparkar, learned Senior Advocate has further contended that it is evident that land being Survey Nos. 438 and 439 paiki has never been purchased by petitioner and is purchased by one Mr. Jaswantbhai Mohanbhai Patel as partner of M/s. R. P. Associates from the owners of Survey Nos. 438 and 439 and the said transaction has already been admitted in the accounts of the partnership firm for the As-sessment Year 2013-14, which is evident from the copy of the income tax returns which are very much supplied before the authority. The assertion of the department that the constructed property i.e. House No. 3, Union Point, Ghoddod Road, Surat was given in exchange by the petitioner is also unbelievable, since petitioner was never the owner of said property and as such, there is no question of selling the said House or bartering the same.

9.1 Mr. Soparkar, learned Senior Advocate has submitted that there is no transaction on the part of petitioner in the year under consideration i.e. 2011-12 for which the petitioner can be said to have to any income for which he is required to pay income tax. In fact, the said property came to be purchased by M/s. R. P. Associates for the Assessment Year 2013-14 and ‘Sauda Chitthi’ does not justify any such transaction which still entitle re-spondent no. 3 to reopen the assessment or reassess the income tax return and there is no fail-ure on the part of petitioner to disclose any material fact for the assessment year in question, the authority ought not to have assumed the jurisdiction.

9.2 Mr. Soparkar, learned Senior Advocate has further submit-ted that for Survey No. 706, wherein the entire transaction relied upon by the department is based on ‘Sauda Chitthi’ which is purportedly executed in the year 2010-11 that (i) the land never belong to petitioner, but it is alleged that petitioner wanted to sell the land to one Dilipbhai Sojitra for an amount of Rs.23,30,15,508/-, (ii) that the land was purchased after al-most two years by the petitioner along with one M/s. A.R. Enterprise, one partnership firm in the year 2013 i.e. on 28.10.2013 for an amount of Rs.5,12,83,200/- and (iii) it cannot be said that no transaction has taken place in this regard for the year under consideration i.e. 2010-11 when the petitioner in fact has purchased the said portion of land jointly with M/s. A.R. Enter-prise only in the year 2013 and controversy appears to have been misconstrued by the petition-er which has led to reopening of assessment and further petitioner is till date the owner of said Survey No. 706 Dumas and there is no question of said ‘Sauda Chitthi’ being executed in any year. Learned Senior Advocate has further submitted that this was specifically pointed out be-fore the authority, but by ipse dixit manner, the authority has without proper ap-plication of mind, initiated steps for reopening which is otherwise impermissible. Since there is a clear lack of authority in this background of fact to initiate proceedings for reopening, this Court may kindly consider the same.

9.3 Mr. Soparkar, learned Senior Advocate has further submit-ted that there is no material whatsoever to substantiate the stand of the department which has been created from the document/‘Sauda Chitthi’ recovered from the premise of one Mr. Piyush Modi. Petitioner’s premise was also searched and no incriminating document was found and no additional income was declared by the petitioner and there was no material found from pe-titioner’s premise. To substantiate the said ‘Sauda Chitthi’ to arrive at a reason to believe that income escaped the assessment and as such, even if formulating such information about in-come having escaped from assessment, there is no cogent material whatsoever available with the authority. Hence, authorities’ action deserves to be quashed.

9.4 Learned Senior Advocate has further submitted that reasons for reopening are prepared in mechanical exercise on the basis of the information received from the Assessing Officer of Shri Piyush Modi and Shri Dilip Sojitra which also contained the following facts and said facts herein would also not justify the reopening of the assessment (i) in respect of land at survey nos. 438 and 439 Dumas, the reasons mentioned that both these lands were purchased by R.P. Associates, but still case of Shri Pawan Tulsiani i.e. the petition-er has been reopened, (ii) in respect of land at survey no. 706 Dumas, the reasons mentioned that even the land is owned by M/s. A.R. Enterprise whereas, the said land was purchased only on 28.10.2013.

9.5 Hence, the information passed is also clearly indicating that Shri Pawan Tulsiani i.e. the petitioner is not the owner of survey nos. 438 and 439 Dumas, whereas survey no. 706 Dumas, is still owned by M/s. A.R. Enterprise and is not sold and in spite of such fact, respondent no. 3 has attempted to reopen the case of petitioner by issuance of impugned notice. It has been contended that respondent no. 3 is defending his action of er-roneous reopening in the hands of Shri Pawan Tulsiani i.e. the petitioner instead of reopening the case of R.P. Associates or passing on information to the Assessing Officer of R.P. Associ-ates since the last date of reopening the case for Assessment Year 2011-12 was elapsed and as such, by mere raising inference, proceedings appears to have been initiated, which in the background of these facts is thoroughly impermissible.

9.6 Learned Senior Advocate has vehemently contended that for reopening of assessment under Section 147 of the Income Tax Act the primary condition is that Assessing Officer has ‘reason to believe’ that any income chargeable to tax has escaped assessment for any Assessment Year, then he may proceed. This primary basic condi-tion should be available. A perusal of the reasons recorded would indicate that Assessing Of-ficer did not have any reason to believe that income chargeable to tax has escaped assessment for the year under consideration. For formulating the belief the Assessing Officer must have appropriate and cogent material and it cannot be on mere unsupported belief or suspicion. Ac-cording to learned Senior Advocate before issuance of notice under Section 148 of the Income Tax Act, the aforesaid exercise is must and necessary and same having not been established, impugned notice as well as the order rejecting the objections deserves to be quashed and set aside. Learned Senior Advocate has submitted that since in view of Section 149 of the Income Tax Act, reopening cannot be commenced after expiration of six years period from end of rele-vant Assessment Year by raising mere inference. An attempt is made which in the background of facts obtained is thoroughly impermissible. According to learned Senior Advocate, there are several proposition of law on the issue, which clearly indicate that there is hardly any case made out to sustain the action. There is no failure on the part of petitioner and there is no justi-fication adequate enough that there is no escapement of income due to failure on the part of petitioner to disclose. If this be missing, the very initiation of proceedings deserves to be quashed and the entire exercise appears to have been undertaken without proper application of mind and thereby affecting fundamental right of petitioner. Petitioner left with no other effica-cious remedy is constrained to approach this Court.

9.7 Learned Senior Advocate has submitted that by such arbi-trary action, petitioner is sought to be saddled with huge amount on assessment to the tune of Rs.10 crores which is not substantiated from any material. Hence, in the background of these facts, the proceedings of reopening being without authority of law may be quashed. The afore-said eventualities are clearly projected even at the time of issuance of notice, this Court was pleased to extend ad-interim relief by directing the authority not to pass final order without permission of the Court.

9.8 Learned Senior Advocate has relied upon few decisions to strengthen his submission. A reference is made to a decision in the case of Commissioner of Income Tax v. Balbir Singh Maini reported in [2017] 398 ITR 351 (SC) (paragraph 17) and by referring to this decision, it has been contended that condition precedent is that there must be income escapement which is not in the present case. Learned Senior Advocate has also made a refer-ence to two further decisions (i) In the case of Ami Ashish Shah v. Income Tax Officer reported in [2021] 126 Taxmann.com 236 (Guja-rat) (paragraph 27 and 28), (ii) In the case of Vinodbhai Samjibhai Ravani v. Deputy Commissioner of Income Tax rendered in Special Civil Application No. 21691 of 2016 with Special Civil Application 21741 of 2016 dated 15.02.2017 (paragraph 3, 3.5 and 7.1) and relying upon these decisions, a contention is raised that action sought to be initiated against petitioner is absolutely impermis-sible. It has been contended that both these transactions even if are of the firm, as how petition-er can be dealt with is not forthcoming. Learned Senior Advocate has submitted that during the process, it appears that two ‘Sauda Chitthi’ with respect to Survey nos. 706 Dumas appears to have been referred i.e. 23.03.2010 and 09.02.2011, but both the attempts were to sell and not to buy and as such the authority has misconstrued the entire circumstance and thereby, sought to reopen the assessment. Learned Senior Advocate has submitted that every circumstance was explained in detail, but respondent authority has not examined the same and passed an order which is unsustainable. Hence, the relief prayed for deserves to be granted.

10. As against this, Mr. Nikunt Raval, learned advocate appear-ing on behalf of the Revenue authority has vehemently opposed the petition and has contended at this stage reopening of assessment the authority should be permitted to reopen the assess-ment instead of intercepting and if allowed to proceed ahead petitioner will not be remediless. It has been contended that while examining the explanation the authority has found some ma-terial about shadow transaction and adequate reasons to formulate the belief of reopening of assessment and as such, at this stage of the proceedings, the authority deserves to be allowed to adjudicate and examine and then to arrive at ultimate conclusion. It has been contended that it is not correct on the part of petitioner counsel to indicate that reopening is impermissible in law. In fact, the authority is adequately empowered to examine the issue. When such belief about income having escaped is established, and here is a case in which conjoint effect of ma-terial and the explanation, the authority has rightly rejected the stand of the petitioner and passed an order dated 26.11.2018. Hence, petitioner at this stage may not be allowed to inter-ject the proceedings which are sought to be processed. Mr. Raval, learned advocate has re-ferred to a decision in the case of Heval Navinbhai Patel v. Income Tax Officer reported in [2021] 126 Taxmann.com 82 (Gujarat) (paragraph 25 (viii) and (xvii)). By referring to few observations contained in the said decision, a contention is raised that authority is thoroughly justified in initiating the proceedings for reopening of assessment.

10. As against this, in rejoinder, learned Senior Advocate for petitioner by reiterating the stand has further made a reference to few decisions to canvass his submission that reopening is impermissible in the background of present facts and said deci-sions are (i) In the case of Gujarat Flurochemicals Ltd. v. Deputy Commissioner of Income Tax reported in [2009] 319 ITR 282 (Guj) (paragraph 10) (ii) In the case of Aayojan Develop-ers v. Income Tax Officer reported in [2011] 335 ITR 234 (Guj) (paragraph 8) (iii) In the case of Ashwin Khimchand Jhakaria v, DDIT International Taxation rendered in Special Civil Ap-plication 1896 of 2014 dated 21-22/04.2014 and by referring to these decisions, has contended that the petition deserves to be considered by granting relief as prayed for. No other submis-sions have been made.

DISCUSSION AND FIND-INGS:

12. Quite often challenge is laid to the notice issued by the Rev-enue under Section 148 of the Act and it is noticed by this Court that such petitions are admit-ted and in some cases stay of further proceedings pursuant to such notice is issued whereby there is no progress in the re-assessment proceeding. The conflict between the assessee and the Revenue for re-opening has been the subject matter of challenge before the constitutional courts by invoking the extraordinary jurisdiction under Article 226 of the Constitution of India read with Article 227 (supervisory jurisdiction). It is trite law that extraordinary jurisdiction is to be sparingly used and until and unless writ applicant is able to establish that either a consti-tutional right has been infringed or there has been violation of principles of natural justice or there being challenge to the vires of the Act or the Rules, this Court would refrain from exercis-ing the extraordinary jurisdiction. It would be apt and appropriate to notice that where a chal-lenge is laid to the re-opening of the assessment, such matters are required to be taken up by this Court on priority basis and disposed of at the threshold instead of keeping the said matters pending and/or allowing it to be languishing before this Court for years to come and thereby resulting in prejudice to both the parties. We say so, for the reason that in the event of as-sessee’s contention being upheld the re-assessment sought to be commenced would come to an end, of course, subject to the further challenge by the Revenue if they chose to do so. Whereas, if the contention of the assessee is not accepted or in other words, challenge laid to re-opening fails, in such circumstances, if the writ application is kept pending for years or allowed to lan-guish before this Court by granting stay of re-opening of assessment and thereby stalling the proceedings before the authorities, it would not only result in piling up of the cases before this Court but it would also stall the re-assessment proceedings which otherwise would have come to an end long back and parties to such proceedings would have been in a position to re-take recourse to the alternate remedy available under law viz. by questioning the order of assess-ment by filing an appeal before the appellate forum in the manner prescribed under the Act.

13. It also requires to be noticed that an attempt is always made by the assessee to assail the notice of re­assessment on the ground of there being no tangible material to form a belief that the income chargeable to tax has escaped the assessment; there is no material having any live link for formation of such belief; the return of income was original-ly accepted, re-opening of the assessment would not be permissible; the re­assessment pro-ceedings cannot be initiated on borrowed opinion or view; the Assessing Officer cannot im-prove upon the reasons assigned; barred by limitation. Whereas Revenue would contend that re-opening of the assessment is challenged at the drop of the hat and attempts are made to call upon the constitutional court to go into facts of the case and alternate remedy of filing an ap-peal is always available to such assessee once the order of re-assessment is made and only in extraordinary circumstances, writ court would exercise the extraordinary jurisdiction to inter-fere with the re-opening of the assessment and at the stage of re-opening of the assessment, the Court will have to look into or examine as to whether the reasonable belief for re-opening the assessment formed by the authorities would be justifiable without going into merits of the case and as such, they would seek for dismissal of such petitions or rejection of the contentions when challenge is laid to the commencement of re-assessment proceedings. Section 148 of the Act enables the authority to issue a notice where income has escaped assessment viz. before making the assessment, re-assessment or re-computation under Section 147; the Assessing Of-ficer is required to issue notice to the assessee along with copy of the order passed. The Hon’ble Apex Court in the case of GKN Driveshafts (India) Ltd. vs. ITO, [2003] 259 ITR 19 (SC) has held that when a notice under Section 148 is issued, the proper course of action for the noticee is to file a return and if he so desires, seek reasons for issuing the notice and the Assessing Officer would be bound to furnish reasons within a reasonable time. It is further held that on receipt of reasons, the noticee is entitled to file objections to issuance of said notice of reopening and the Assessing Officer would be bound to dispose of the same by passing a speaking order.

14. The expression ‘reason to believe’ which was occurring in Section 147 of the Act prior to the substitution of the said provision has received the attention of the Hon’ble Apex Court in the case of Assistant Commissioner of Income-tax vs. Rajesh Jha-veri Stock Brokers (P) Ltd., [2007] 161 Taxman 316 (SC) and it has been held:

“17. The scope and effect of section 147 as substituted with effect from April 1, 1989, as also sections 148 to 152 are substantially different from the provisions as they stood prior to such substitution. Under the old provisions of section 147, separate clauses (a) and (b) laid down the circumstances under which income escaping assessment for the past assessment years could be assessed or reassessed. To confer jurisdiction under section 147(a) two conditions were required to be satisfied firstly the As-sessing Officer must have reason to believe that income profits or gains chargeable to income tax have escaped assessment, and secondly he must also have reason to believe that such escapement has occurred by reason of either (i) omission or failure on the part of the assessee to disclose fully or truly all material facts necessary for his assessment of that year. Both these conditions were conditions precedent to be satisfied before the Assessing Officer could have jurisdiction to issue notice under section 148 read with section 147(a) But under the substituted section 147 existence of only the first condition suffices. In other words if the As-sessing Officer for whatever reason has reason to believe that income has escaped assessment it confers jurisdiction to reopen the assessment. It is however to be noted that both the condi-tions must be fulfilled if the case falls within the ambit of the proviso to section 147. The case at hand is covered by the main provision and not the proviso.

18. So long as the ingredients of sec-tion 147 are fulfilled, the Assessing Officer is free to initiate proceeding under section 147 and failure to take steps under section 143(3) will not render the Assessing Officer powerless to ini-tiate reassessment proceedings even when intimation under section 143(1) had been is-sued.”

15. Likewise, the distinction between a return of income filed by the assessee when accepted under Section 143(1) of the Act without scrutiny would stand on a different footing than a return of income proceed under Section 143(3) of the Act and this issue has also been laid to rest by the Hon’ble Apex Court in Rajesh Jhaveri’s case referred to supra by opining that where the return of income filed by assessee is accepted under Section 143(1) of the Act without scrutiny, the Assessing Officer would not have formed any opinion and the principle of change of opinion would not apply. It has been further held that:

“13. One thing further to be noticed is that intimation under section 143(1)(a) is given without prejudice to the provisions of section 143(2). Though technically the intimation issued was deemed to be a demand notice issued un-der section 156, that did not per se preclude the right of the Assessing Officer to proceed under section 143(2). That right is preserved and is not taken away. Between the period from April 1, 1989 to March 31, 1998, the second proviso to section 143(1)(a), required that where adjust-ments were made under the first proviso to section 143(1)(a), an intimation had to be sent to the assessee notwithstanding that no tax or refund was due from him after making such ad-justments. With effect from April 1, 1998, the second proviso to section 143(1)(a) was substitut-ed by the Finance Act, 1997, which was operative till June 1, 1999. The requirement was that an intimation was to be sent to the assessee whether or not any adjustment had been made un-der the first proviso to section 143(1) and notwithstanding that no tax or interest was found due from the assessee concerned. Between April 1, 1998 and May 31, 1999, sending of an intima-tion under section 143(1)(a) was mandatory. Thus, the legislative intent is very clear from the use of the word intimation as substituted for assessment that two different concepts emerged. While making an assessment, the Assessing Officer is free to make any addition after grant of opportunity to the assessee. By making adjustments under the first proviso to section 143(1)(a), no addition which is impermissible by the information given in the return could be made by the Assessing Officer. The reason is that under section 143(1)(a) no opportuni-ty is granted to the assessee and the Assessing Officer proceeds on his opinion on the basis of the return filed by the assessee. The very fact that no opportunity of being heard is given under section 143(1)(a) indicates that the Assessing Officer has to proceed accepting the return and making the permissible adjustments only. As a result of insertion of the Explanation to section 143 by the Finance (No. 2) Act of 1991 with effect from October 1, 1991, and subsequently with effect from June 1, 1994, by the Finance Act, 1994, and ultimately omitted with effect from June 1, 1999, by the Explanation as introduced by the Finance (No. 2) Act of 1991 an intima-tion sent to the assessee under section 143(1)(a) was deemed to be an order for the purposes of section 246 between June 1, 1994, to May 31, 1999, and under section 264 between October 1, 1991, and May 31, 1999. It is to be noted that the expressions intimation and assessment order have been used at different places. The contextual difference between the two expressions has to be understood in the context the expressions are used. Assessment is used as meaning sometimes the computation of income, sometimes the determination of the amount of tax paya-ble and sometimes the whole procedure laid down in the Act for imposing liability upon the tax payer. In the scheme of things, as noted above, the intimation under section 143(1)(a) cannot be treated to be an order of assessment. The distinction is also well brought out by the statutory provisions as they stood at different points of time. Under section 143(l)(a) as it stood prior to April 1, 1989, the Assessing Officer had to pass an assessment order if he decided to accept the return, but under the amended provision, the requirement of passing of an assessment order has been dispensed with and instead an intimation is required to be sent. Various circulars sent by the Central Board of Direct Taxes spell out the intent of the Legislature, i.e., to minimize the departmental work to scrutinize each and every return and to concentrate on se-lective scrutiny of returns. These aspects were highlighted by one of us (D. K. Jain J) in Apo-gee International Limited v. Union of India [(1996) 220 ITR 248]. It may be noted above that under the first proviso to the newly substituted section 143(1), with effect from June 1, 1999, except as provided in the provision itself, the acknowledgment of the return shall be deemed to be an intimation under section 143(1) where (a) either no sum is payable by the assessee, or (b) no refund is due to him. It is significant that the acknowledgment is not done by any As-sessing Officer, but mostly by ministerial staff. Can it be said that any assessment is done by them? The reply is an emphatic no. The intimation under section 143(1)(a) was deemed to be a notice of demand under section 156, for the apparent purpose of making machinery provisions relating to recovery of tax applicable. By such application only recovery indicated to be paya-ble in the intimation became permissible. And nothing more can be inferred from the deeming provision. Therefore, there being no assessment under section 143(1)(a), the question of change of opinion, as contended, does not arise.”

16. The aforesaid proposition of law has been reiterated by the Hon’ble Apex Court in the case of Deputy Commissioner of Income- Tax & Anr. vs. Zuari Estate Development & Investment Company Limited, reported in [2015] 373 ITR 661 [SC]. At the time of commencement of the re-assessment proceedings, the Assessing Of-ficer has to see whether there is prima facie material, on the basis of which, the department would be justified in reopening the case. The sufficiency or correctness of the material would not be the subject matter of consideration at that stage. The Hon’ble Apex Court in the case of Raymond Woollen Mills Ltd. v. ITO (236) ITR 34 (SC) has held:

“In this case, we do not have to give a final decision as to whether there is suppression of material facts by the assessee or not. We have only to see whether there was prima facie some material on the basis of which the De-partment could reopen the case. The sufficiency or correctness of the material is not a thing to be considered at this stage. We are of the view that the court cannot strike down the reopening of the case in the facts of this case. It will be open to the assessee to prove that the assumption of facts made in the notice was erroneous. The assessee may also prove that no new facts came to the knowledge of the Incometax Officer after completion of the assessment proceeding. We are not expressing any opinion on the merits of the case. The questions of fact and law are left open to be investigated and decided by the assessing authority. The appellant will be entitled to take all the points before the assessing authority. The appeals are dismissed. There will be no order as to costs.”

17. A validity of the re-opening of the assessment will have to be determined with reference to the reasons recorded for re-opening of the assessment. But the Assessing Officer would confine to the recorded reasons for assuming the jurisdiction in order to support the re­opening. To put it differently, the requirement under the law for re-opening and assessment is application of mind by the Assessing Officer to the material produced prior to the re-opening of the assessment; to conclude that he has reason to believe that the income has escaped assessment. In other words, the income which has escaped assessment, the mate-rial on which such assessment or re-assessment is being made, not being available at the earli-er stage would be the live link for such re-assessment. The tangible material which forms the basis for the belief that income has escaped assessment if evident from reading of the reasons, it would suffice to sustain such re-opening of the assessment. Correctness or otherwise of the tangible material and its evaluation cannot be gone into by this Court in exercise of jurisdiction under Article 226 or 227 of the Constitution of India.

18. The expression ‘reason to believe’ then occurring in Section 147 cannot be interpreted to mean the Assessing Officer is having absolute power to re-open the assessment of such income declared in the return of income having escaped the assessment. It is in this background the aforesaid expression ‘reason to believe’ assumes significance inas-much as change of opinion cannot be the basis or per se reason to re-open the assessment al-ready made. In order to assume jurisdiction under Section 147 where assessment has been made under Section 143(3) the twin conditions to be satisfied is (a) the Assessing Officer must have reason to believe that the income chargeable to tax has escaped assessment; and (b) such escapement occurred by reason of failure on the part of the assessee either (i) to make a return of income under Section 139 or in response to the notice issued under sub-section (1) of Sec-tion 142 or Section 148 or (ii) to disclose fully and truly all the material facts necessary for his assessment for that purpose.

19. In other words, the Assessing Officer has to arrive at a sub-jective satisfaction independently on an objective evaluation of the material by independent ap-plication of mind. The concept of ‘change of opinion’ has been held by the Hon’ble Apex Court in Commissioner of Income Tax, Delhi vs. Kelvinator of India Ltd. [2010] 210 ITR 561 as an inbuilt test to check abuse of power by the Assessing Officer.

20. Where fresh facts are revealed as the basis for re­opening of the assessment / re-assessment by issuance of notice under Section 148 per se cannot be held to be a ground to set aside the same on the ground of there being a change of opinion if the Rev-enue is able to demonstrate that on the basis of there being such material which has emanated subsequent to the assessment or inquiry reveal, the material facts were suppressed or not dis-closed fully at the time of framing of the assessment would be a good and sufficient ground for re-opening of the assessment. In other words, if the material facts which form the basis for re-opening of the assessment not being available at the time of framing of the assessment would suffice for re-opening the assessment and the sufficiency of such material cannot be gone into at the stage of examining the validity of the notice issued for recovery, as otherwise the purpose of such re-opening would be erased.

21. The issue regarding maintainability of the petition has also been laid to rest by this Court in the matter of Vishwanath Engineers vs. Assistant Commis-sioner of Income-tax [2013] 252 ITR 54 : [2012] 21 taxmann.com 5 (Gujarat) whereunder it came to be held that if a litigant has concurrent remedies against the order, it can avail of the both without prejudice to his rights and contentions made therein unless there is a specific bar created by statute in the matter of availing both the remedies. It has been further held:

“11. It is now settled law that if a liti-gant has concurrent remedies against the selfsame order, it can avail of the both without prej-udice to his rights and contentions made therein unless there is a specific bar created by statute in the matter of availing both the remedies. For instance, under the Code of Civil Procedure, against a judgment and decree, a party can file an application for review before the selfsame court on limited grounds and also file regular appeal before the higher forum the scope of which is much wider. However, the law provides that once the appeal is filed, thereaf-ter, the application for review cannot be filed, whereas during the pendency of the application for review, if the appeal is subsequently filed, for that reason, the review application filed be-fore filing of the appeal does not become infructuous. However, if the appeal is disposed of on merit before disposal of the application for review, the application for review will become in-fructuous.

12. Similarly, against an exparte de-cree, an aggrieved defendant can prefer both regular appeal under Section 96 and an applica-tion for setting aside exparte decree by taking recourse to Order 9 Rule 13 of the Code of Civil Procedure apart from his remedy of review. However, if the appeal is disposed of on merit where even the grounds accessible under Section 114 or Order 9 Rule 13 are also available by taking aid of Section 105, the pending applications for review or for setting aside exparte de-cree would become infructuous. (See Bhanu Kumar Jain v. Archana Kumar and another re-ported in AIR 2005 SC 626 for detail discussion).

13. Therefore, in the case before us, the petitioner filed the present application under Article 226 of the Constitution on the allega-tion that he is entitled to the benefit of law laid down by the Supreme Court in case of CAL-CUTTA DISCOUNT COMPANY LTD. V. I.T.O., reported in 41 ITR 191. The petitioner has also challenged the consequent order of reassessment on the ground of violation of law laid down by the Supreme Court in the case of GKN Driveshafts [India] Ltd. [su-pra].”

22. As already noticed hereinabove, the exercise of jurisdiction is available where the applicant / petitioner would assail the action of the authorities under four contingencies viz. when the said action is (i) without jurisdiction; (ii) in violation of princi-ples of natural justice; (ii) the authority exercising jurisdiction is without such power and va-lidity or vires of a statutory provision is challenged. This view also gets forfeited by the law laid down by the Hon’ble Apex Court in the case of Whirlpool Corporation vs. Registry Trade Marks, Mumbai and others, [(1998) 8 SCC 1] and in the matter of T.T. Pvt. Ltd. vs. ITO, Cir-cle III, Bangalore [1980] 121 ITR 551 whereunder it has been held that availability of alter-nate remedy would not be a bar for the constitutional court to examine the notice issued under Section 148 of the I.T. Act, 1961 if it is challenged on the ground of jurisdictional error. How-ever, exercise of such power would be rare or to put it differently when the reason assigned for re-opening of the assessment is challenged as being contrary to the facts, the correctness of such reason would not be gone into, inasmuch as it is likely to prejudice the rights of the par-ties in the proceedings that may eventually take place in the event of such challenge failing. As such it would be safe and appropriate at that juncture to arrive at a conclusion of not proceed-ing to examine the merits of the reason assigned for re-opening of the assessment or re-assessment.

23. Petitioner has challenged the impugned order as well as notice of reopening on the ground that same are highhanded arbitrary, capricious and imper-missible, respondent No.3 authority had no justification to initiate proceeding under Section 142 of the Income Tax Act while passing impugned order dated 26.11.2018 and has contended further that land bearing Survey Nos.438 and 439 Paiki-2 has never been purchased by peti-tioner, but is purchased by Mr. Jashwantbhai Mohanbhai Patel as a partner of M/s. R.P. Asso-ciates from owners of the aforesaid survey numbers and said transaction has been effected in the account of partnership for the assessment year 2013-14 and has further submitted that with respect to Sauda-chitthi, as has been relied upon can never be utilized for initiating impugned action and there is no failure on the part of petitioner to disclose any material fact for assess-ment. Petitioner till date is owner of the land bearing Survey No.706 Dumas and as such there is no question of Sauda-chitthi being executed in any year. For the purpose of reopening the assessment, according to petitioner, no imaginary conclusion can be arrived at by an authori-ty. Simply because, Sauda-chitthis were recovered from the premises of one Mr. Piyush Modi and from petitioner’s premises, no incriminating documents were found, as such no additional income was declared by petitioner. Reopening appears to have been prepared on the basis of information received from assessing officer of Shri Piyush Modi and Mr. Dilip Sojitra and as such, by raising such factual controversy also, action is assailed by way of invoking extraordi-nary jurisdiction of this Court.

24. Now to deal with such background which is tried to be pro-jected by petitioner, a perusal of discretion exercised by respondent authority deserves to be relooked. The authority while disposing of the objections against reopening of the assessment under Section 147 of the Income Tax Act has examined at great length the stand of the peti-tioner and has also examined not only the Sauda-chitthi but also certain admissions and state-ments made by petitioner as well as incidental material and only upon such critical analysis of the material on record, jurisdiction is exercised as has been vested in law.

25. It appears that since action of reopening is sought to be ini-tiated after a lapse of 4 years, as required, a specific sanction from the Principal CIT, Surat-1 has been issued and only thereafter, impugned notice came to be issued and as such, notice which has been issued is by the competent authority and after obtaining necessary sanction and as such, it does not appear that impugned notice is without authority of law in any form. Be that as it may. The order disposing of objections deserves relevant consideration. Said or-der has been passed in consonance with proper guidelines as laid down by Hon’ble High Court in the case of Sahkari Khand Udyog Mandali Ltd., as has been mentioned in the order. That apart, entire exercise has been undertaken on account of relevant documents having been seized from the residence of Mr. Piyush Modi during search and survey proceeding and from residence of Shri Modi documents pertaining to initiation of purchase of property in question, i.e. Survey Nos.438 and 439/2 by Ramesh Bhadani as well as its subsequent sale to assesseee, i.e. present petitioner, were seized and investigating team had made a detailed search and in-quiries and after recording relevant statements of persons during search proceedings, crucial information having been unearthed, on account of which steps were contemplated against the petitioner. On the basis of such material, authority has arrived at a conclusion that there was lapse on the part of the petitioner in disclosing the relevant particulars and certain issues were not allowed to be unearthed and same having come to its notice, steps have been in contem-plated to reopen the account by way of impugned notice and order.

26. At this stage, post search inquiry and seized material has revealed certain circumstances which has constrained the authority to initiate steps against the petitioner and while arriving at a conclusion that Sauda-chitthi was never cancelled and it has been found from the premises of Shri Ramesh Bhadani, as one of the grounds for reopening. Said conclusion is based upon thorough analysis of the material and we found from the order itself that even petitioner has also admitted in his statement that unaccounted cash has been paid for the purchase of both the above said plots but was not disclosed on account of fear of consequences and has also submitted that he would reveal after consultation with other part-ners. During course of recording of statement, even Mr. Ramesh Bhadani has also admitted certain amounts as reflecting in the order about transaction in question. Mr. Pavan Tulsiani- petitioner was cross-examined during the course of survey proceeding and he specifically ad-mitted about the cash transaction during sale of land but did not disclose the exact cash amount paid by him to Mr. Ramesh Bhadani and as such it was very much found clearly by an authority that petitioner being a leading person did purchase both the plots bearing Block/ Survey Nos.438 and 439/2, said land transaction deal was finalized as per the terms and con-ditions specified in the Sauda-chitthi for both the lands and each conditions including payment schedule have also been fulfilled by the purchaser and seller of the land. MoU as well as Sau-da-chitthi seized, as referred to in the order itself, were clearly matching with the registered document and main person of the firm is the petitioner himself as has been revealed. This ex-amination if to be looked into, unexplained investment by petitioner which relates to another land at 706 Dumas is also examined at length and there also, petitioner himself has accepted contents of Sauda-chitthi during post-search proceedings and when that be so, it is not possible for us at this initial stage to exercise our extraordinary jurisdiction by intercepting the process of respondent authority for reopening the assessment.

27. It is a trite law that if the facts are in serious dispute and if same are clouded by some suspicion, same has to be left open for appropriate competent au-thority to examine at length and extraordinary jurisdiction cannot be exercised to usurp such discretion of the competent authority from being adjudicated upon. Keeping this salutary prin-ciple in mind, we deem it proper to incorporate hereunder paragraph 3.3, detailed analysis of an authority of the material on record and further we may emphasis that in view of the cate-gorical analysis undertaken by an authority, though we may not quote entire conclusion here-under, but having gone through the same even from paragraph 4 of the order, we find that this is not a fit case to exercise extraordinary jurisdiction to intercept the respondent authority from proceeding ahead:-

3.3 Analysis of the seized material and the findings of the post search enquiries.

From the above details of sauda chithi, it is clear that the Ramesh R: Bhadani has sold the land to Pawan Tulsiani total amount for Rs.32,24,89,000/-. The unaccountable transactions were recorded in the above sauda chithi, so Ramesh R. Bhadam is not disclosing actual fact regarding transactions in respect of th36 land. He is trying to mislead the department by saying that the sauda chithi has been can-celled but when he was asked that whether you have any cancellation deed of sauda chithi. In reply, he stated that he does not have any cancelled sauda chithi. Further, during the course of search, no cancelled sauda chithi has been found from the premises of Ramesh R. Bhadani or any other places. If the sauda chithi has been cancelled, then it must have been found during the course of search along with the huge unaccounted transactions related doc-uments. Ramesh R. Bhadani is stating the incorrect fact about the cancellation of the above sauda chithi only to evade the tax liability of himself and to save the purchaser of the land Pawan K. Tulsiani.

Had this sauda chithi been cancelled then property of House No.3, Union Point, Ghod Dod Road, Surat would not been registered in the name of MB Systems (connected to Shri Ramesh R. Bhadani). During the course of in-vestigation it was noticed that the House No.3, Union Point, Ghod Dod Road, Surat was con-structed by Sumangal Corporation and Sunil J. Shah was one of the partner in this firm. The details such as purchase deed in this regard was called for from M/s. Sumangal Corporation. Only two purchase deeds for these properties admeasuring area of 221.28 sq. mtrs super built-up situated at ground floor and 221.28 sq mtrs super built-up situated at first floor were fur-nished by M/s. Sumangal Corporation to the Investigation Wing These properties have been purchased by MB Systems at a cost of Rs.83,66,125/-and Rs.75,03,200/- respective-ly.

Further, on perusal of the registered document no.SRT/ 1/ATV/6651 and SRT/1/ATV/6656 dated 25.04.2012 and 27.04.2012, it has been noticed that MB Systems (Ramesh R. Bhadani) had purchased the property House No.3, Union Point, Ghod Dod Road, Surat directly from the Sumangal Corporation, whereas, Pawan Tulsiani has signed in the sauda chithi in the capacity of seller for selling the same property. As per the document of the property Sunil J. Shah was the owner of the property. So it is quite clear that Sunil J. Shah had sold the property to Pawan Tulsiant without registering the document, and the same property has been sold out by Pawan Tulsiani to Ramesh R. Bhadani.

Thus the transactions made between Sumangal Corporation (Sunil J. Shah) and Pawan Tulsiani was not recorded in their regular books. It is not possible to sell the property without being the owner of the same. Pawan Tulsiani has sold the property of Union Point for an amount of Rs.15,15,10,000/-. Hence, an amount of Rs. 15,15,10,000/- in form of Hawala is nothing but unaccounted ex-penditure for purchasing of land at Block No.438, 439/Paiki 2. Because Pawan Tulsiani, being owner of the property of House No.3, Union Point, Ghod Dod Road, Surat, instructed M/s.Sumangal Corporation and some other persons may be to make the document and get registered in favor of MB Systems (Ramesh R. Bhadani).

With an intention to know the true fact about the transaction made by Pawan Tulsiani for the land Block No.438, 439/Paiki 2, At Dumas, a survey action was conducted on Factory Premise at 1/138-142 and at Administra-tive office at 402, Meridian Tower, Udhna Darwaja, Surat of Pawan K. Tulsiani.

During the course of survey proceed-ings, a statement of Shri Pawan K. Tulsiani, was recorded u/s.131 of the Act. The same sauda chithi at Page No.20 of Annexure A-1 was shown to him during the course of proceedings. On perusal of the indenture contained in sauda chithi. Pawan Tulsiani stat-ed that the facts mentioned in the sauda chithi are true, but he has not signed in the sauda chithi. The signature appearing in the sauda chithi is not done by him. He also stated that his signature has been done by one of his partner, Paresh M. Mavani on behalf of him after con-firmation with him on telephoneHowever he confirmed that the indenture of the sauda chhithi and details of transactions have been con-veyed to him on telephone, which were duly confirmed by him. Thus, he admitted that he was well aware about entire deal and the same was finalized after taking his consent on tele-phone. Since, Pawan Tulsiani was not available in Surat, so his signa-ture was done his partner. As Pawan Tulsiani was claiming that he was out of Surat at the time of preparation of sauda chithi so he was asked to produce the evidence regarding his claim to be out of station. But he could not produce such type of evidence for his claim during the entire survey proceedings. He was further questioned that have you seen the sauda chithi after com-ing back to Surat. He stated that Yes, he has seen the sauda chithi. At last question in respect of the purchase of the land at Block No.438, 439/Paiki-2 was asked to Pawan Tulsiani. He con-firmed the purchase of the land, and he stated that both the lands ie Block No.438, 439/Paiki 2 at Dumas was purchased by him along with his partners Jaswant M. Pa-tel, Paresh M. Mavani and Rajendra Panwala. He also cleared that document of the land at Block No.438 was registered in the name of Jaswant M. Patel and Block No.439/2, was in the name of Jaswant Patel and Paresh Mavjibhai Mavani since he is not a farmer of Gujarat and therefore he cannot buy the agricultural land in Gujarat. Both the above persons, Jaswant M.Patel and Paresh M. Mavani are farmers in Gujarat and therefore the registered sale deed of both the above land were made in their names. He also stated that the document for the land at Block No.438 was registered in the month of March 2012 in the name of Jaswant M. Patel and he doesn’t know the time period of the registration of other block at 439/2. It was further stated by him that both the pieces of land were purchased in the name of Jaswant Patel and Paresh Mavani but they are not the actual owners of the land. The above land was purchased in their name only to avoid the legal hurdle that only a farmer can purchase agricultural land in Gujarat.

Thus, after conducting the survey proceedings, it was clear that the details mentioned in the sauda chithi dated 28.7.2011 were 100% correct and both the above lands were purchased by Pawan K. Tulsiani from Ramesh R. Bhadani. But, the purchase deeds were executed in the name of shadow persons who were having only 2.5% share each on the above land due to the legal hurdle. The land at Block No.438 was purchased from Ramesh R. Bhadani vide sale deed No.8377 dated 30.5.2012 and land at Block No.439/2 was purchased directly from the original land owner Vinod M. Lavri as per the Memorandum dated 30.5.2012 which have been discussed earlier. Thus, there is no confusion about the sale of both the land by Ramesh R. Bhadani to Pawan K. Tulsiani. As per the memorandum Vinodbhai Lavri had de-cided to sell the agricultural land Block No.439/ Paiki 2, situated at Dumas to Ramesh R. Bhadani. But, document of the same land was not registered in the favor of Ramesh R. Bhada-ni. So Ramesh R. Bhadani has directed Vindobhai Lavri, who was actual owner of the land to register the document of the land on behalf of Pawan K. Tulsiani.

Further, Pawan Tulsiani was asked about the transaction which were written on sauda chithi of the land Block No. 438, 439 / Paiki 2, situated at Dumas. As per the above sauda chithi, both the land having admeasuring area 22870 sq. yards were sold to him at the rate of Rs. 14,101/- per sq. yard. Thus, the deal of the land was finalized for total amount of Rs. 32,24,89,870/-, whereas the purchase deeds of both the above lands had been registered for an amount of Rs.3,24,14,400/-vide sale deed No8377 dated 30.5.2012 for land at Block No.438, Dumas and Rs 3,57,00,000/-vide sale deed No.8376 dated 30.5.2012. for land at Block No.439/2, Dumas. Hence it is clear that the differ-ential amount of Rs. 25,43,75,470/- (Rs. 32,24,89,870 Rs. 6,81,14,400) was paid in cash in the form of on money. The relevant part of statement recorded given are as under:

PARAGRAPHS ARE IN HIN-DI

On perusal of the Annexure-A/21, page No. 3, it is no-ticed that Pawan Tulsiani has made payment in cash of Rs.6,11,00,000/- on various dates to Ramesh R. Bhadani for purchase of land at Block No. 438 and 439 / 2, Dumus:

10.1.2011Rs. 11,00,000
13.1.2011Rs.3,00,00,000
13.1.2011Rs.3,00,00,000
Rs.6,11,00,000

Here, it is clear that Pawan K. Tulsiani had admitted in his statement that the unaccounted cash has been paid for purchase of both the above land but with the fear of payment of taxes he did not state the correct amount of the unaccounted cash paid. He has promised that after consultation with his partners he will state the correct amount before the undersigned on 19.5.2014, but later on he did not turn up to state the correct fact

During the course of recording the statement in post search proceedings Ramesh R. Bhadani has admitted that he has received an amount to the tune of Rs.8,08,76,700/- in cash in form of on money in lieu of sale of land at Block No.438 situated at Dumas. As Pawan Tulsiani and his partners had purchased the same land from Ramesh Bhadani so, during the course of survey proceedings Pawan Tulsiani was cross examined and it was asked to him that why the payment of Rs.8,08,76,700/- made to Ramesh R. Bhadani on account of purchase of land Should not be treated as unaccounted investment in the hands of Pawan Tulsiani and his partners. In re-sponse to the same he admitted about the cash transactions during the sale of land, but he did not disclose the exact cash amount paid by him to Ramesh R. Bhadani.

It is very much clear that both the land Block No.438 and 439/2 were purchased by Pawan K. Tulsiani as the leading person and its partners. Both the lands were purchased from Ramesh R. Bhadani, but the purchase deed for land 439/2 were made directly between Vinod M. Lavri, the original land owner and the shadow purchaser Paresh M. Mavani and Jaswant M. Patel on behalf of Pawan K. Tulsiani. Further, the other conditions mentioned in the sauda chithi about House No.3, Union Point, Ghod Dod Road, were also purchased by Ramesh R. Bhadani which itself prove that the each condition discussed in the sauda chithi have been fulfilled by both the purchaser and the seller. Therefore, it can be easily concluded that the land transaction deal was finalized as per the terms and conditions as specified in the sauda chithi for both the land. Each conditions includ-ing payment schedule have been fulfilled by the purchaser and seller of the land.

28. It may be for this exercise to be undertaken, reopening is sought to be undertaken after a period of about 6 years and more, but for initiating such ac-tion, as has been revealed, appropriate sanction has been obtained and thereafter, competent authority is proceeding ahead. Hence, we are of the clear of the opinion that on the basis of such analysis and conclusion of an authority, this is not a fit case to exercise extraordinary ju-risdiction.

29. In addition to this, it is clearly visible from the notice im-pugned in the petition dated 30.3.2018 at Annexure-D, same has been issued after obtaining necessary sanction from the higher authority as required under the Statute and as such notice impugned cannot be assumed to be without jurisdiction. At this stage of proceedings and pecu-liar background of these facts, we may clarify that petitioner can agitate the issue of even juris-diction before competent authority who is to proceed and adjudicate further and as such we are of the clear view this is not a case for exercising extraordinary jurisdiction and petitions do not deserve to be entertained. Even the authority who passed the order of disposing of the ob-jection is also well within the discretion vested in law and after careful analysis of the material on record and exercise of discretion prima facie suggests that same is within the prescribed parameters and it cannot be said to be perverse in any form as each and every ma-terial as well as the explanation offered by the petitioner has been dealt with and arrived at a particular conclusion. Merely because same is not favourable to petitioner, extraordinary ju-risdiction cannot be involved by us for substituting the view of the authority on the basis of the very same material, particularly when entire mechanism as provided under the Act to redress the grievance of the petitioner even in the process of reopening being available. Hence, we are of the clear opinion that no case is made out by the petitioner.

30. One additional fact which we may not lose sight of is that even from reasons furnished under communication dated 17.9.2018 – Annexure-F for reopen-ing when Deputy Commissioner of Income Tax, Surat sought sanction since 4 years had elapsed of the relevant assessment year, seeking necessary sanction to issue notice under Sec-tion 148 of the Act, which has been accorded by the Principal Commissioner of Income Tax in view of Section 151(1) of the Act and referring to this communication dated 17.9.2018 also, it appears that after careful analysis of the documents and search operation, the competent au-thority has sought sanction and same has been granted by an authority under the Statute. Since this factual matrix and analysis is based on the entire challenge in the petition, we deem it proper to incorporate hereunder same since we are of the clear opinion that no case is made out to exercise extraordinary jurisdiction. Following is the conclusion of the competent authori-ty while seeking sanction to proceed ahead against the petitioner. Since the said conclusion is very much necessary and the authority is required to be permitted to proceed ahead, we may deem it proper to refer to and quote the same. It reads:-

2. Further, Your re-quest is considered and the reasons recorded u/s 147 of the 1.T. Act for reopening the case for A.Y. 2011-12, is reproduced as under:-

“The assessee has filed its return of income for A.Y. 2011-12 on 29.03.2013 declaring total income at Rs.1,00,85.160/-. The same was processed u/s 14301) of the Act on 17.08.2013.

2. In this case, an information has been received from the DCIT, Central Circle 2. Surat related to unexplained investment made by the assessee Shri Pawan Kishanchand Tulsiyani The DCIT, Central Circle-2, Surat has re-ported that a search action was carried out u/s 132 of the 1. T. Act, 1961 on 18.02.2014. Dur-ing the search proceedings in the case of Shri of Shri (illegible) the books of accounts and doc-uments are maintained with his accountant Shri Piyush G. Moch Subsequently search action was carried out at the residence of Piyush G. Modi at 14. Alkapuri Society, Su-mul Dairy Road, Surat. During the course of search proceedings various documents were found and seized, relevant information as derived from them is discussed herewith.

2.1. Selling of Land Block No.438, 439/ Paiki 2. by Ramesh R. Bhadani to Pawan Tulsiyani:-

As per this sauda chitti seized during the search, land of Block No.438, 439/ Paiki 2, at Dumas admeasuring area 22870 sq. yards was sold to Pawan Tulsiyani at The rate of Rs.14101/- per sq. yard for a consideration of Rs.32,24,89,000/-. It was further written in the sauda chithi that Pawan K. Tulsiani held his ownership right in House No.3 of Union Point, ghod Dod Road, Surat. The area of the above property at Union Point, Ghod Dod, Surat was 10000 sq. ft. including ground first floor and the + rate of Rs.15.151/- per sq. ft was decided between Pawan K. Tulsiani and Ramesh R. Bhadani. Thus, the total price of the above property came to Rs.15,15,10,000/-. As per this sauda chithi, Pawan K. Tulsiani had sold this property of House No.3, Union Point, Ghod Dod Road, Surat to Ramesh R. Bhadani in lieu of payment against the purchase of land at Block No. 438, 439/2, Dumas. The value of this property had been decided at Rs.15,15,10,000/- and this amount had been subtracted from the total amount of Rs.32,24,89,000/- and it was decided that the balance amount of Rs.17,09,79,000/-will be paid by Pawan Tulsiyani to Ramesh R.Bhadani. The payment schedule of the balance amount was also mentioned in the sauda chithi.

It was gathered during the assess-ment proceedings that the above both lands were purchased by R.P. Associates in which Shri pawan Tulsiyani is one of partner and House No.3, Union Point, ghod Dod Road, Surat was purchased by M.B. Systems in which Shri Ramesh R. Bhadani is one of Partner.

2.1 (a) Further, it is also reported that on perusal of Annexure-A/21, Page No. 3, it was noticed that Shri Pawan Tulsian has made payment in cash of Rs.6,11,00,000/- on various dates to Shri Ramesh R. Bhadani for purchase of land at Block No. 438 and 499/2.

10.01.2011Rs. 11,00,000
13.01.2011Rs.3,00,00,000
13.01.2011Rs.3,00,00,000
Rs.6,11,00,000

During the course of statement dated 16.05.2014, Shri Pawan K. Tulsani had admitted in his statement that the unaccounted cash has been paid for purchase of both the above land but the fear of payment of taxes he did not stated the correct amount of unaccounted cash paid He has promise that after consultation with his partners he will state the correct amount before the DDIT(Inu) on 19.05.2014, but later on he did not turn up to state the correct fact.

In view of the above facts, it is clear that source of the sand cash payment amounting to Rs.6,11,00,000/- made by Shri Pawan K. Tulstani in lieu of purchase of the said two land during the FY 2010-relevant to A.Y 2011-12 remains unex-plained

2.2. Selling of Land Block No.706, at Du-mas:

Page No.2 & 10, of Annexure-A2 seized during the search from the residence of Piyush Modi pertains to saudu chithi made between Pawan Tulstani as seller and Dilip C Sojitra as purchaser for the land at Block No.06. Du-mas.

In consequences of search, conducted on 18.02.2014 at the premises of Piyush Modi, at 14. Alkapuri Society, Sumul Dairy Road, Surat, a survey was also conducted on 15.05.2014 at the office and factory premises of Pawan Tulsiyanı to investi-gate transactions occurred in land Block No.706, situated at Dumas Page No 2 & 10, of Annexure A-2, seized during the search from the residence of Piyush Modi The above suuda chithi was shown to Shri Pawan Tulsiyani during the survey proceedings and was asked to ex-plain in detail content of this page. On perusal of the page no.2 of Annexure A-2 dated 23.10.2010 as shown to Pawan Tulsiyani he confirmed that the sauda chithi in question was prepared with consent of him and Dilpbhai Sojitra He identified his and Dilip Sojitra’s signature as reflected on the page and he added that the entire deal was witnessed by Paresh M. Mavani and he had also signed on it Further, he, explained that the land Block No.706, situated at Dumas, admeasuring area 15972 sq yards was decided to be sold to Dilipbhai Sojitra at the rate of Rs.10602/- per sq. yard. Pawan Tulsiyani also admitted that he received Rs.11,00,000/-as advance(token money), for confirmation of the deal. He also ex-plained that the land Block No.706, situated at Dumas pertained to navi sharat. As per Gujarat Land Act, the land belonging in navi sharat cannot be sold without altering it into juni sharat If a person want to alter the land to juni sharat belonging to navi sharat then certain amount of premium as decided by Gujarat Government is to be paid. Pawan Tulsiyani stated that he did not know about the quantum of premium so the deal was cancelled. He also explained about the contents of page no10 of the Annexure A-2. It is a sauda chithi of the same land at Block No.706, Dumas made between Pawan Tulsiani as seller and Dilip C sojitra as purchaser. Pawan Tulsiyani stated that he once again decided to sell this land after gathering information of premium amount now the same land was decided to sell to Dilipbhai Sojitra at the rate of Rs.14589/-, Rs.51,00,000/- was also advanced by Dilipbhai Sojitra, and receipt of the same was duly acknowledged Pawan Tulsiyani during the course of survey proceedings. On being asked about the present ownership of the land Block No06, situated at Dumas, Pawan Tulsi-yani stated that his firm M/s. AR Enterprise owes this land The land was purchased on 28.10.2013 at an amount of Rs 5,12,83,200/-.

From the above discussion it is clear that the land was purchased by Pawan Tulsiyani in the name of M/s. AR. Enterprise on (28.10.2013 at an amount of Rs.5.12,83,200/-. It is very surprising, as per the sauda chit dated 09.02.2011 the same land was being sold at an amount of Rs.23.30.15.508/- Hence, the docu-mented purchase price of land of Rs.5,12,83,200/- cannot be relied upon because in the real estate market cost of the land increases with time. So the price of the same land cannot be less than that of its price two years before. Thus, if it is assumed that the transactions are being made at par, the the land would have been purchased at an amount of Rs 23.30.15.508/ It is a general trend in the land transactions that the registered document were made only at jantri price decided by the Government of Gujarat for stamp duty purpose, which is much below the actual sale consideration. The remaining amount in excess of the document price and the actual market price will be paid in cash by the purchaser. But, in the saudu chithi the actual sale price of the land will be written, since it is a informal document between the purchaser and seller, Further, between the period of 2010 to 2013, the land prices in Surat have been increased substantially in Dumas area. If we consider the sale price of the above land as per the sauda chithi dated 9.2.2011, the actual sale consideration in 2013, which is the most conservative price for the above land then also it is proved that Pawan Tulsion had paid substantial amount on purchase of the above land. Therefore, Pawan Tulsiyani’s firm M/s A.R. Enterprise has paid Rs.18,17,32,308/-(23,30,15.508 – 5,12,83,200) out of books, which can be treated as unaccounted investment of Pawan- Tulsiyani’s firm M/s. A.R. Enterprise’s for the FY 2013-14 The unaccounted investment of Pawan Tulstani in the above land at Block No.706, Dumas comes to Rs.18,17,32,308/-. However, as per the sauda chithi dated 09.02.2011, the purchaser has to pay 25% of total on-money amount on 09.02.2011. So, unaccounted invest-ment of Shri Pawan K. Tulsiani amounting to Rs.4,54.33.077/- (25% of Rs.18,17,32,308) per-tains to FY.2010-11 relevant to A.Y 2011-12.

3. Report of the DCIT, Central Cir-cle-2, Surat has been perused with reference to statement given u/s.131 of the Act of Shri Pawan K. Tulsainai and transactions appearing in the seized paper provided referred above. After perusai and having verified, the finding of the DCIT, Central Circle-2, Surat is found to be in order that the assessee Shri Pawan K. Tulasiani was paid on-money in the form of cash amounting to Rs.6,11,00,000/- in lieu of purchase of land block no 438, 439/Paiki 2 during the FY 2010-11 relevant to AY 2011-12, source of the said cash payment remains un-explained and required to be added in the total income of the assessee. Further, it is also ob-served as per the sauda chithi dated 09.02.2011 and statement dated 16.05.2014 given by Shri Pawan K. Tulsiani that Shri Pawan K. Tulsiani has made investment amounting to Rs.454,33,077/- (25% of Rs.18,17,32,308) for the purchase of land block mo 706 at Dumas, pertains to FY 2010-11 relevant to A.Y.2011-12, remains unexplained and re-quired to be added in the total income of the assessee.

4. In view of above facts and finding, the detailed investigation report in the above matter received from the DCIT, Central Circle-2. Surat has been perused and analyzed From the detailed investigation report based on docu-mentary evidences seized during the course of search action and statement of the assessee Shri Pawan K. Tulsiani during the course of search/survey action, it is clear that the assessee Shri Pawan K. Tulasiani was paid on-money in the form of cash amounting to Rs.6,11,00,000/- in lieu of purchase of land block no. 438, 439/Paiki 2 during the FY 2010-11 relevant to AY 2011-12, source of the said cash payment remains unexplained and required to be added in the total income of the assesse. Further, it is also observed as per the sauda chith dated 09.02.2011 and statement dated 16.05.2014 given by Shri Pawan K Tulstani that Shri Pawan K Tulsiani has made investment amounting to Rs.4,54,33,077/- (25% of Rs.18,17,32,308) for the purchase of land block no 706 at Dumas, pertains to FY 2010-11 relevant to A.Y 2011­12, remains unexplained and required to be added in the total income of the assessee.

5. From the above, it is clear that the assessee has made paid on money in the form of cash to the tune of Rs.6,11,00,000/- for the purchase of land block no. 428, 439/Paiki 2, source of the said cash is unexplained & al-so the assessee has paid investment of Rs.4,54,33,077/- for the purchase of land block no. 706 at Dumas, source of the said investment is also unexplained and the same requires to be brought within the ambit of taxation.

6. In view of the above, I have reason to believe that income of Rs.10,65.33.077/- has escaped assessment within the meaning of sec-tion 147 of the IT Act, 1962. It is therefore, necessary to initiate action u/s. 147 of the IT. Act, 1961, in the case of the assessee for A.Y 2011-12.

7. In this case, return of income was filed for the year under consideration and no assessment u/s 143(3)/ 147 was made and the only requirement to initiate proceedings u/s 147 is reason to believe which has been recorded above (refer paragraphs to 6).

It is pertinent to mention here that in this case the assessee has paid on-money for the purchase of land block no. 438, 439/Paiki 2 and also made unaccounted investment for the purchase of land block no 706 at Dumas. Therefore, the said transaction made by the assessee remained unexplained and income chargeable to tax had an escaped assessment within the meaning of section 147 as discussed m paragraph (1 to 6) above. In view of the above, the provisions of clause (b) of Explanation 2 to section 147 are applicable to facts of this case and the assessment year under consideration is deemed to be a case where income chargeable to tax has escaped assessment.

31. Since the aforesaid factual details are very much expedient to proceed ahead in contemplated action, we find it necessary that the authority must be al-lowed to examine at length while reopening the assessment and we cannot usurp such discre-tion of an authority in the aforesaid peculiar background of these facts, more particularly when at various levels, as indicated above, certain admissions of petitioners are also worth proper scrutiny and as such, fact finding authority is required to analyze them freely. At this stage, we may deem it proper to quote hereunder the relevant observations made by Hon’ble the Apex Court in case of D.N. Jeevaraj Vs. Chief Secretary, Government of Karnataka and others reported in (2016) 2 SCC 653 propounding that High Court/ Constitu-tional Court in exercising its extraordinary jurisdiction cannot usurp the discretion of a statuto-ry authority unless it believes that such an authority will not be able to exercise discretion on account of some inability. In the instant case, we find no such eventuality has arisen to assume that authority will not examine or petitioner will not have any opportunity to put forth his case during the proceedings post-issuance of notice impugned in the petition. It would be of benefit to note the observations contained in paragraph 41 and 43 of Hon’ble Apex Court which reads as under:

“41. This Court has repeatedly held that where discretion is required to be exercised by a statutory authority, it must be permitted to do so. It is not for the courts to take over the discretion available to a statutory authority and render a decision. In the present case, the High Court has virtually taken over the function of the BDA by requiring it to take action against Sadananda Gowda and Jeevaraj. Clause 10 of the lease-cum-sale agreement gives discretion to the BDA to take action against the lessee in the event of a default in payment of rent or committing breach of the conditions of the lease-cum-sale agreement or the provisions of law.[8] This will, of course, require a notice being given to the alleged defaulter followed by a hearing and then a decision in the matter. By tak-ing over the functions of the BDA in this regard, the High Court has given a complete go-bye to the procedural requirements and has mandated a particular course of ac-tion to be taken by the BDA. It is quite possible that if the BDA is allowed to exercise its discre-tion it may not necessarily direct forfeiture of the lease but that was sought to be pre- empted by the direction given by the High Court which, in our opinion, acted beyond its jurisdiction in this regard.

43. To this we may add that if a court is of the opinion that a statutory authority cannot take an independent or impartial decision due to some external or internal pressure, it must give its reasons for coming to that conclusion. The reasons given by the court for disabling the statutory authority from taking a decision can always be tested and if the reasons are found to be inadequate, the decision of the court to by-pass the statutory authority can always be set aside. If the reasons are cogent, then in an ex-ceptional case, the court may take a decision without leaving it to the statutory authority to do so. However, we must caution that if the court were to take over the decision taking power of the statutory authority it must only be in exceptional circumstances and not as a routine. Inso-far as the present case is concerned, the High Court has not given any reason why it virtually took over the decision taking function of the authorities and for this reason alone the manda-mus issued by the High Court deserves to be set aside, apart from the merits of the case which we have already adverted to.”

32. Thus, above material would disclose that information re-ceived from the Investigating Wing cannot be denied and they are prepared after conducting search and seizure operation, inquiry, recording of the statements and collection of evidence. The expression ‘reason to believe’ occurring in Section 147 would mean and include justifica-tion for such re-opening and when the Assessing Officer has cause or justification to know or suppose that income had escaped assessment, it can be safely inferred that he is said to have reason to believe that income had escaped assessment. Finality to the ascertainment cannot be attached at this stage. When there is relevant material on which a person of reasonable pru-dence would have formed the belief of such escapement, it would suffice and in the instant case, the above material is sufficient enough to arrive at such a conclusion. The sufficiency of the material would be good enough for the authority to clutch the jurisdiction for commence-ment of re­assessment proceedings. However, the sufficiency or correctness of the material would not be in the realm of consideration at this stage. Thus, where the Assessing Officer has reason to believe and there is prima facie material for commencement of re-assessment pro-ceeding, sufficiency or correctness of the material is not a thing to be considered at that stage and the correctness or otherwise of the reasoning recorded for re-opening of the assessment would not be in the realm of adjudication by going into merits of the said reasoning. If such reasons are not perverse and there being not mere change of opinion and there being sufficient material or reason to believe there is escapement of income to tax it would suffice for the au-thorities to proceed to re-open the assessment subject to other prescribed criteria also being satisfied. The borrowed opinion also being conspicuously absent in the instant case subsequent events also disclosing certain transactions attributable to the assessee having been unearthed during the course of search proceedings and the statement of the assessee himself disclosing the admission with regard to the said transaction, it cannot be gainsaid by the petitioner / as-sessee that such commencement of re-assessment proceeding is without jurisdiction or jurisdic-tional error having been committed by the authorities.

33. At this stage, it cannot be assumed either way who is right or wrong on the basis of this crucial disputed questions of fact. In catena of decisions, Hon’ble the Apex Court has propounded that extraordinary jurisdiction may not be exercised when dis-puted questions of fact are involved though there are line of judgments but with a view to avoid overburdening the present order, we propose to extract the relevant observations contained in paragraph 26 in the matter of Shubhas Jain Vs. Rajeshwari Shivam and others reported in 2021 SCC OnLine SC 562, reads as under:-

“26. It is well settled that the High Court exercising its extraordinary writ jurisdiction under Article 226 of the Constitution of In-dia, does not adjudicate hotly disputed questions of facts. It is not for the High Court to make a comparative assessment of conflicting technical reports and decide which one is accepta-ble.”

34. From the aforesaid proposition of law also, we are of the clear opinion that this is not a case in which we may exercise extraordinary jurisdiction nor a case is made out by the petitioner for this Court to exercise such extraordinary jurisdiction. Hence, we refrain to do so.

35. Yet, another reason for us not to exercise the discretion is that under the scheme of the Act, petitioner has very much the remedy by way efficacious re-dressal mechanism under various provisions of the Act available and as such when petitioner is not left remediless, at this stage of proceedings, to invoke extraordinary jurisdiction would not be just and proper. At various stages, petitioner is permitted to avail alternative statutory remedies after ultimate analysis or conclusion being arrived at by an authority. At this stage, we may not assume anything and petitioner being not remediless, we are not inclined to exer-cise extraordinary jurisdiction.

36. In the light of the aforesaid observations, the judgment which have been relied upon by learned counsel for the petitioner are no-doubt projecting the salutary principles, but the background of this peculiar facts and the material and discussion which we have made in earlier paragraphs of this very order, we are of the opinion that no decision may be applied as a straitjacket formula as it reflects distinguishable circumstance as well and as such, based upon the sound principle of law on the precedent, we are of the view that decisions cited by learned counsel are of no assistance to their propositions.

We may say so in view of the fact that while applying the prin-ciple by way of precedent, one additional fact or a distinct fact would make a world of differ-ence in applying the said proposition is clearly laid down by the Hon’ble Apex Court in the case of State of Madhya Pradesh Vs. Narmada Bachao Andolan and Another reported in (2011) 7 SCC 639. Relevant observations contained in paragraph 64, we deem it proper to quote hereunder:-

“64. The Court should not place reli-ance upon a judgment without discussing how the factual situation fits in with a fact-situation of the decision on which reliance is placed, as it has to be ascertained by analysing all the ma-terial facts and the issues involved in the case and argued on both sides. A judgment may not be followed in a given case if it has some distinguishing features. A little difference in facts or additional facts may make a lot of difference to the precedential value of a decision. A judg-ment of the Court is not to be read as a statute, as it is to be remembered that judicial utteranc-es have been made in setting of the facts of a particular case. One additional or different fact may make a world of difference between the conclusions in two cases. Disposal of cases by blindly placing reliance upon a decision is not proper. (Vide MCD v. Gurnam Kaur, Govt. of Karnataka v. Gowramma and State of Haryana v. Dharam Singh)”

37. Hence, we are of the view that decisions in the case of Commissioner of Income Tax v. Balbir Singh Maini reported in [2017] 298 ITR 351 (SC), in the case of Ami Ashish Shah v. Income Tax officer reported in [2021] 126 Taxman.com 236 (Gujarat) and decision dated 15.2.2017 delivered in Special Civil Application No.21691 of 2016 with Special Civil Application No.21741 of 2016 relied upon would not be applicable, since facts on hand and the detailed analysis by the competent authority altogether project a different fact situation.

38. Hence, we are of the considered view that there is no merit in these petitions and they are liable to be dismissed for the reasons aforestated and according-ly, they stand dismissed. Rule is discharged. No order as to costs.

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