BOMBAY COLONY WELFARE ASSOCIATION Vs. INTELLIGENT OFFICER

JUDGEMENT

(1.) The challenge in the writ petition is against Ext.P4 series of penalty notices, that have been served on the petitioners by the 1st respondent Intelligence Officer. The learned Senior Counsel appearing for the petitioners would vehemently contend that the notices in question, although styled as show-cause notices, in fact reveal a decision already taken against the petitioners by the adjudicating authority, and therefore, the nomenclature of "notices" is farcical. It is contended that the authority has already made up his mind with regard to the penalty to be imposed on the petitioners and hence, there is no meaning in submitting any reply to the show-cause notices and going for an adjudication before the 1st respondent Intelligence Officer. On a perusal of the notices, that are impugned in the writ petition, I find that, the said notices merely refer to certain facts, and arrive at tentative computations with regard to the penalty that is proposed against the petitioners on various charges. The mere tentative quantification of the penalty amounts, made on the assumption that the allegations against the petitioners may ultimately be established, cannot be seen as an instance of the adjudicating authority already having made up his mind against the petitioners herein. It is relevant to note that the notices conclude with a sentence that suggests that the penalties are only proposed, and the petitioners are asked to submit their reply to the said proposals. It is not in dispute that the petitioners have since submitted Ext.P5 common reply to Ext.P4 series of notices that were served on them, raising, inter alia, contentions with regard to the jurisdiction of the officer to proceed with the penalty proposal, as also aspects relating to quantification of the penalty, that is proposed against the petitioners. Inasmuch as what is impugned in the writ petition are only show-cause notices, and the petitioner has already preferred Ext.P5 reply to the said show cause notices, I am of the view that the said notices need not be interfered with at this stage, in these proceedings under Art. 226 of the Constitution of India. I find that, the petitioners are not prejudiced by the mere issuance of the show cause notices and have ample opportunity to establish their case on merits, before the adjudicating authority. I, therefore, dismiss the writ petition in its challenge against Ext.P4 series of notices.

(2.) The learned Senior Counsel for the petitioners would point out that although a request was made by the petitioners for an adjournment, so as to produce various documents to substantiate their contentions on merits, the 1st respondent has posted the matter for hearing on 31.05.2017. It is the submission of the learned Senior Counsel for the petitioners that the petitioners have not been given ample opportunity to produce documents necessary to substantiate their contentions on merits and, unless an opportunity is granted to them for producing the documents, the adjudication proceedings will work to their prejudice. Taking note of the said submission of the learned Senior Counsel for the petitioners, and finding that the respondents are obliged to give the assessee ample opportunity to produce documents to substantiate their case on merits, I find that the ends of justice would be met by directing the 1st respondent to defer the hearing of the cases by one month. Resultantly, the 1st respondent shall post the cases for hearing on any day after 30th of June and inform the petitioners of the date of posting, so that the petitioners would be in a position to produce documents to substantiate their contentions on merits before the 1st respondent, at the time of hearing. The 1st respondent shall pass orders in the matter, only after hearing the petitioners in the manner directed in this judgment.

(3.) Before parting with this case, and taking note of numerous instances where parties have approached this Court invoking the jurisdiction of this Court under Art. 226 of the Constitution of India, against show cause notices and assessment orders that have been issued to them under various Statutes, it might be apposite to observe that, in matters of taxation, it is generally considered inappropriate for this Court to interfere in the exercise of its jurisdiction under Art. 226 of the Constitution of India either at the stage of issuance of show cause notice or at the stage of assessment, where an alternate remedy by way of filing a reply or appeal, as the case may be, is available [See: Union of India Vs. Hindalco Industries - [(2003) 5 SCC 194]]. No doubt, the reluctance on the part of this Court to exercise its jurisdiction, in such matters, is the result of a self imposed limitation by the court while exercising its jurisdiction under Art. 226 of the Constitution of India, and there are recognised exceptions to the said limitations. In cases where a show cause notice issued by a taxing authority is impugned before this Court, unless this Court is satisfied that the show cause notice is totally non-est, in the eye of law, for absolute want of jurisdiction of the authority to even investigate the facts, writ petitions would not ordinarily be entertained for the mere asking and as a matter of routine. In such cases, the writ petitioner would invariably be directed to respond to the show cause notice, and take all contentions before the adjudicating authority. In this connection, it is also relevant to note that the issue as to whether a show cause notice is founded, on any legal premise, is itself a jurisdictional issue, which can be urged by the assessee before the adjudicating authority issuing the notice. It is incumbent upon the assessee to urge the jurisdictional issue before the authority issuing the notice and await an adjudication, before approaching this Court challenging an order of the adjudicating authority on the ground of jurisdiction [See: Special Director and another Vs. Mohd. Ghulam Ghouse and another - [(2004) 3 SCC 440]].