Ravi Raika vs The Principal Commissioner Of Income Tax-2 Raipur, Raipur and The Assistant Commissioner Of Income Tax Circle-1(1), 32 Banglow, Bhilai, C.G.

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AFR

HIGH COURT OF CHHATTISGARH, BILASPUR Reserved on 27-02-2024 Pronounced on 08-04-2024

WPT No. 194 of 2023  Ravi Raika S/o - Shri Omprakash Raika Aged About 45 Years 32- F, Light Industrial Area, Nandini Road, Bhilai, District : Durg, Chhattisgarh ---- Petitioner Versus 1. The Principal Commissioner Of Income Tax-2 Raipur, Raipur, Central Revenue Building Civil Lines, Raipur. 2. The Assistant Commissioner Of Income Tax Circle-1(1), 32 Banglow, Bhilai, C.G. --------Respondents

_______________________________________________________________

For the Petitioner :

Mr. Mool Chand Jain, Advocate For the Respondents :

Mr. Ajay Khumrani on behalf of Mr. Amit Chaudhari, Advocate _________________________________________________________ Hon'ble Shri Justice Narendra Kumar Vyas C.A.V. ORDER

1. By filing this writ petition, the petitioner has assailed the notice

dated 31.03.2023 issued by The Assistant Commissioner of

Income Tax Circle-1(1), 32 Banglow, Bhilai, C.G. under the

provisions of Section 148 of the I.T. Act, 1961 for the Assessment

year 2019-2020 and order dated 30.03.2023 passed by the

Assistant Commissioner of Income Tax under Section 148A(d) of

the I.T. Act. (Annexure P/10).

2. Brief facts as projected by the petitioner are that the Petitioner is a

trader of Iron and Steel, its scrape, end-cuttings under the name Neutral Citation 2024:CGHC:12495

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and style of M/s Poonam Wires at Raipur. In the course of his

business the petitioner purchased M.S. Scrap to the tune of Rs.

Rs. 15,94,12,971/- from 7 firms, namely i) M/s Shri Balaji Ind.,

Raipur for Rs. 6,40,86,885/- ii) M/s Namita Enterprises, Ryp for

Rs. 4,21,43,513/-, iii) M/s Amber Enterprises, Prop. Kamalsingh

Sundergarh (Orissa) for Rs. 1,07,02,936/- iv) M/s Blender Iron &

Steels, Bhubaneswar (Orissa) for Rs. 1,83,42,499/-, v) M/s Utsav

Enterprises, Bhubaneswar for Rs. 2,26,55,898/-, vi) M/s S.R.

Enterprises, Bhubaneswar for Rs. 9,22,740/- vii) M/s Arvind

Enterprises, Prop. Arvind Kumar Shah, Angul(Orissa) Rs.

5,58,500/-.

3. The Assistant Commissioner, Circle- 1(1), Bhilai (JAO) on receipt

of information from the DDIT, Bhubaneswar and DDIT, Raipur that

the said parties are found to be indulged in issuing fake bills to

certain parties, issued enquiry letter u/s. 148A(a) on 16.03.2023 to

the petitioner (vide Annexure P/1) allowing only 7 days time to

respond. The petitioner filed reply to the enquiry letter on

22.03.2023 (Annexure P/2) along with copy of I.T. Return for

Assessment Year 2019-20, Computation of Income, Audited

Financial Statement of Account, copy of bank statement of

account, ledger copies of the said parties and GSTR-2A, GSTR-

3B, GSTR-9 and GSTR-9C from which total purchase, sale and

input tax credit can be ascertained, GSTR-1 by supplier reporting

the detailed sales to the purchasers on the basis of which ICT is

availed by the purchasers and requested to allow some time to file

copies of purchase and sale invoices etc., which were seized by Neutral Citation 2024:CGHC:12495

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the GST authorities on 06.03.2019.

4. The ACIT-1(1), Bhilai, did not allow time and the Jurisdictional

Assessing Officer (JAO), issued show cause notice u/s. 148A(b)

of the I.T.Act, 1961 on 24.03.2023 (Annexure P/3) asking to

showcause on or before 31.03.2023 mainly contending that in

view of the information received by him for the Assessment Year

2019-20 there is escaped assessment within the meaning under

Section 148 of the Income Tax Act. The details of information /

enquiry / documents were also annexed with the notice. The

ACIT-1(1) has directed the petitioner to file reply to this notice and

why the purchases of Rs. 16,82,95,431/- should not be treated as

bogus and why the escaped income of the assessee be not

assessed.

5. The petitioner submitted its reply on 30.03.2023 (Annexure P/5)

mainly contending that all their purchase and sale invoices and

builties have been seized by the GST authorities during the

course of search conducted on 06.03.2019 wherein no

objectionable goods or papers were found. It has also been

contended that all the transactions done by the petitioner are

genuine and duly supported by purchased builties, sales bills, e-

way bills, copy of ledger, account of 7 parties, copy of chart

showing comparative gross profit/net profit turnover, copy of

assessment orders for assessment years 2015-16 to 2017-18

(Annexures P/6 to P/9). It has also been contended that in

purchases bills sellers have charged GST and the petitioner has

paid the sale proceeds with GST through banking channel but due Neutral Citation 2024:CGHC:12495

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to seizure of documents he is unable to upload the copies, as

such prayed for three weeks' time as per the provisions of Section

148A(b) of the Act before passing of order under Section 148A(d)

of the Act. The petitioner has also contended that no independent

enquiry has been conducted against him and merely on the basis

of information received from various investigation wings of the

department, showcause notice has been issued. It has also been

contended that recording of reasons based on investigation wings

report is a borrowed satisfaction and not the Assessing Officer's

reason to believe. To substantiate the submission the petitioner

has referred to various judgments. The petitioner also asked for

providing the copy of statement of suppliers recorded at the back

of the assessee, which has not been provided, which is violation

of principles of natural justice.

6. It has been contended that there being no direct link or nexus

between the statement of the suppliers and the transactions with

the petitioner and without establishing any collusion between the

suppliers and the petitioner, the learned A.O. has passed the

cryptic order u/s. 148A(d) of I.T. Act on 31.01.2023 (Annexure

P/10) without allowing time and without taking cognizance of the

case laws pronounced by the Hon'ble Supreme Court and various

High Courts.

7. Thereafter, the Assistant Commissioner Income Tax issued notice

under Section 148 of the Act on 31.03.2023 mainly contending

that the order under Section 148A of the Act has been passed on

30.03.2023 and directed the petitioner to submit reply within 30 Neutral Citation 2024:CGHC:12495

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days from the service of this notice. On the above factual

foundation the petitioner has filed the writ petition for quashing the

notice dated 31.03.2023 issued under Section 148 of the Act and

order dated 30.03.2023 passed by the ACIT under Section

148A(d) of the Act by filing writ petition under Article 226 of the

Constitution of India.

8. The learned counsel for the petitioner would submit that the notice

issued under Section 148 on 31.03.2013 by ACIT-1(1) Bhilai is

without jurisdiction, non-est as jurisdiction lies with the Assessing

Officer of National Faceless Assessment Centre, Delhi. He would

further submit that as per Section 151A of the Act a scheme has

been notified on 29.03.2022 which provides that notice shall be

issued by the National Faceless Assessment Centre not by the

jurisdictional Assessing Officer. To substantiate this submission he

has referred to the judgments of Hon'ble Telangana High Court in

case of Surya Laxmi Cottonmills Ltd. vs. Union of India {WP

No. 37414/2022}. He would further submit that copy of statement

of suppliers which has been recorded at the back of the petitioner

and based upon these statements addition has been made which

is nothing but violation of principle of natural justice. He would

further submit that ACIT did not allow proper opportunities to

produce the invoices seized by the GST department. It has also

been submitted that the AO has recorded borrowed satisfaction

without establishing any link between the report of DDIT and

transaction between the suppliers and the petitioner which is

illegal. He would further submit that ACIT-1(1) failed to supply the Neutral Citation 2024:CGHC:12495

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reason in the template as directed by the CBDT. It has also been

contended that the learned A.O. has failed to discharge the

burden of proof to establish that the evidence produced by the

petitioner are fake and not reliable. He would further submit that

the A.O. has erred in law in determining 100% purchase value as

escaped income at Rs. 16,82,95,431/- and would pray for allowing

the writ petition.

9. Counsel for the Revenue would submit that the reply to the notice

dated 31.03.2023 yet to be submitted by the petitioner and if any

adverse order is passed then the petitioner has alternate remedy

of filing the appeal under Section 246(A) of the Income Tax Act

before the Commissioner (Appeals), as such, the writ petition is

not maintainable. He would further submit that disputed facts are

involved which can very well be determined by the appellate

authority as such also the writ petition is not maintainable. He

would further submit that the submission made by the learned

counsel for the petitioner that after insertion of Section 151A in the

Act on 01.11.2020 by Taxation and other laws (Relaxation and

Amendment of Certain Provisions Act, 2020) was made effective

w.e.f. 29.03.2022 and by virtue of Section 151A of the Act the

scheme has been notified. As such, the jurisdictional Assessing

Officer has no authority to issue notice and notice has to be

issued by the National Faceless Assessment Centre is incorrect

submission of fact as this fact has been further clarified vide OM

dated 20.02.2023 which reads as under :-

4. It is also pertinent to note here that under the provisions Neutral Citation 2024:CGHC:12495

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of the Act both the JAO as well as units under NFAC have concurrent jurisdiction. The Act does not distinguish between JAO or NFAC with respect to jurisdiction over a case. This is further corroborated by the fact that under section 144B of the Act the records in a case are transferred back to the JAO as soon as the assessment proceedings are completed. So, section 144B of the Act lays down the role of NFAC and the units under it for the specific purpose of conduct of assessment proceedings in a specific case in a particular Assessment Year. This cannot be construed to be meaning that the JAO is bereft of the jurisdiction over a particular assessee or with respect to procedures not falling under the ambit of section 144B of the Act. Since, section 144B of the Act does not provide for issuance of notice under section 148 of the Act, there can be no ambiguity in the fact that the JAO still has the jurisdiction to issue notice under section 148 of the Act."

10.To substantiate his submission he would refer to the judgment of

the Hon'ble Calcutta High Court in the case of Sanghi Steel

Udyog Pvt. Ltd. V. Union of India and Ors (WPO/1549/2023

decided on 13.09.2023). It is further submitted that the

contention raised by the petitioner has already been considered

by the coordinate Bench of this Hon'ble Court in the matter of Raj

Bachani vs. Union of India (WPT. No. 127/2023). Thus, he

would submit that jurisdictional Assessing Officer as well as the

NFAC have concurrent jurisdiction, therefore, the proceeding

initiated by the Assessing Authority is within jurisdiction and

cannot be quashed on this count. He would further submit that

the issue raised in this case has already been decided by this

Court in WPT No. 186/2022 in case of Barbrik Projects vs

Union of India decided on 28.07.2022 against which writ appeal

was preferred before the Hon'ble Divsion Bench in Writ Appeal

No. 473/2022 which has been dismissed on 15.12.2022, thus he

would submit that lot of statutory remedy is available to the Neutral Citation 2024:CGHC:12495

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petitioner, as such the writ petition at this juncture is not

maintainable.

11. I have heard learned counsel for the parties and perused the

record.

12. This Court is considering the objection raised by the respondents

regarding maintainability of the writ petition against the notice

dated 31.03.2023. The objection raised by the respondents has

already been considered by this Court in WPT No. 186/2022 in

case of Barbrik Projects vs Union of India decided on

28.07.2022 wherein this Court has held as under in paragraph 14

to 16:-

14. The grounds which have been taken by the petitioner in the writ petition is his defence that cannot be examined at the stage of issuance of notice under section 148 of the Act, 1961 as the Assessing Authority before issuance of notice under Section 148 of the Act, 1961 has to rely upon credible information which in the impugned order under Section 148A (d) of the Act, 1961 has already been furnished and thereafter, considering the material it has recorded a finding that it is a fit case where notice under Section 148 of the Act, 1961 can be issued. Learned counsel for the petitioner is unable to point out that the findings which have been recorded by the Assessing Authority are contrary to the material on record and the Assessing Authority has not applied its mind or Assessing Authority has not considered the reply filed by the petitioner. Therefore, the writ petition, at this juncture is not maintainable and deserves to be dismissed.

15. Accordingly, the writ petition being devoid of merit is liable to be and is hereby dismissed. Consequently, application for interim relief also stands dismissed.

16. It is made clear that this court has not examined the contentions of the petitioner on merit, only taken note of the facts for examining the fact whether the writ petition filed under Article 226 of the Constitution of India is maintainable or not. It is for the Assessing Authority, while conducting the proceeding under Section 148 of the Act, 1961, to examine Neutral Citation 2024:CGHC:12495

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and decide the case as per the material available on record, without being influenced by any of the observations made by this court in foregoing paragraphs.

13. The said order has been assailed by the petitioner by filing Writ

Appeal No. 473/2022 which has been dismissed on

15.12.2022 and the order of the Single Judge has been affirmed

by the Hon'ble Division Bench. The Hon'ble Division Bench has

held as under in paragraph 32 and 33:-

32. There is, prima facie, some material on the basis of which the Department could reopen the case. The petitioner had not even made an attempt to assert that the material facts relied on in the SCN is erroneous.

33. In view of the above, we are of the opinion that no interference is called for with the order of the learned Single Judge. Accordingly, the writ petition is dismissed.

14. Thus, the petitioner has opportunity to submit reply to the notice

dated 31.03.2023 where he can take all his possible defence and

if the authority passes the assessment order against the petitioner

still the petitioner has statutory alternate remedy of appeal under

the Act.

15. Learned counsel for the petitioner would submit that there is

flagrant violation of principle of natural justice, therefore, the writ

petition should be entertained by this Court and there is no bar to

entertain the writ petition even if the alternate remedy is available

to the petitioner.

16. To appreciate the rival contentions regarding maintainability of the

writ petition it is expedient for this Court to extract Section 246A

of the Income Tax Act which reads as under:-

Neutral Citation 2024:CGHC:12495

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246A [Appealable orders before Commissioner (Appeals)- (1) Any assessee aggrieved by any of the following orders (whether made before or after the appointed day) may appeal to the Commissioner (Appeals) against--

(a)an order against the assessee where the assessee denies his liability to be assessed under this Act or an intimation under sub-section (1) or sub-section (1B) of section-143, where the assessee objects to the making of adjustments, or any order of assessment under sub-section (3) of section-143 or section-144, to the income assessed, or to the amount of tax determined, or to the amount of loss computed, or to the status under which he is assessed;

(b) an order of assessment, re-assessment or re-

computation under section-147 or section-150;

( c)an order made under section-154 or section-155 having the effect of enhancing the assessment or reducing a refund or an order refusing to allow the claim made by the assessee under either of the said sections;

( d) an order made under section-163 treating the assessee as the agent of a non-resident;

( e) an order made under sub-section (2) or sub-section (3) of section-170;

( f) an order made under section-171;

( g) an order made under clause (b) of sub-section (1) or under sub-section (2) or sub-section (3) or sub-section (5) of section-185 in respect of an assessment for the assessment year commencing on or before the 1st day of April, 1992;

( h) an order cancelling the registration of a firm under sub- section (1) or under sub-section (2) of section-186 in respect of any assessment for the assessment year commencing on or before the 1st day of April, 1992 or any earlier assessment year;

( I) an order made under section-237;

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( j) an order imposing a penalty under--

( A)section-221; or

( B) section-271, section-271A, section-271F, section- 272AA or section-272BB;

( C) section-272, section-272B or section-273, as they stood immediately before the 1st day of April, 1989, in respect of an assessment for the assessment year commencing on the 1st day of April, 1988, or any earlier assessment years;

( k) an order of assessment made by an Assessing Officer under clause (c) of section-158BC, in respect of search initiated under section-132 or books of account, other documents or any assets requisitioned under section-132A on or after the 1st day of January, 1997;

( l) an order imposing a penalty under sub-section (2) of section-158BFA;

( m) an order imposing a penalty under section-271B or section-271BB;

( n) an order made by a Deputy Commissioner imposing a penalty under section-271C, section-271D or section-271E;

( o) an order made by a Deputy Commissioner or a Deputy Director imposing a penalty under section-272A;

( p) an order made by a Deputy Commissioner imposing a penalty under section-272AA;

( q) an order imposing a penalty under Chapter XXI;

( r)an order made by an Assessing Officer other than a Deputy Commissioner under the provisions of this Act in the cases of such person or classes of person, as the Board may, having regard to the nature of the cases, the complexities involved and other relevant considerations, direct.

Neutral Citation 2024:CGHC:12495

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17. From bare perusal of the above mentioned provisions of Income

Tax Act it is quite vivid that the proceeding initiated by virtue of

Section 147 of the Act for assessment of escaped amount is an

appealable order before the Appellate Authority i.e. Commissioner

(Appeal). The contentions raised by the petitioner that the

Assessing Officer has not considered the documents or relied

upon the statements of suppliers which have been recorded on

the back of the petitioner, as such entire proceedings conducted

in violation of principle of natural justice are disputed facts which

can be examined by the Appellate Authority by examining the

entire records of the case. Similarly, the contention raised by the

petitioner that opportunities to produce certain documents have

not been given thus, the proceeding conducted in violation of

principle of natural justice again requires appreciation of facts as

whether these documents are so important that in absence of

them no fair assessment can be done by the Assessing Authority.

This can very well be appreciated and considered by the

Appellate Authority in the eventuality of filing of statutory appeal.

Thus, the ground raised by the petitioner regarding maintainability

of the writ petition is not acceptable and the objection raised by

the Revenue regarding maintainability of the writ petition in view

of availability of alternate remedy of appeal deserves to be

accepted.

18. The issue regarding maintainability of the writ petition under the

Act has come up for consideration before the Hon'ble Supreme

Court in case of Bellary Steels and Alloy Ltd. vs. Deputy Neutral Citation 2024:CGHC:12495

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Commissioner, Commercial Taxes (Assessments) {(2009) 17

SCC 547} and Hon'ble Supreme Court has held that without

factual foundation the matter cannot be decided which can be laid

before the appellate authority which can very well determine the

factual as well as the legal matrix of the case and held as under:-

3. Before concluding, we may state that we have allowed the appellant(s) to withdraw the original Writ Petition as the said proceedings came to be filed against show cause notice. We have repeatedly held that in the absence of factual foundation, it would be impossible to decide matters of this kind. When doctrine of promissory estoppel is invoked, the doctrine needs to be based on factual data which has not been pleaded. The High Court should not have interfered in the matter. In these cases, the writ petition was filed without reply to even the show cause notice. In the circumstances, we could have dismissed these Civil Appeals only on the ground of failure to exhaust statutory remedy, but for the fact that huge investments involving the large number of industries is in issue.

19. Hon'ble Supreme Court in case of Commissioner of Income

Tax, Gujrat vs. Vijabhai No. Chandrani {(2013) 14 SCC 661}

has considered the availability of remedy of appeal under the Act

and has held as under:-

12. In our considered view, at the said stage of issuance of the notices under Section 153C, the assessee could have addressed his grievances and explained his stand to the Assessing Authority by filing an appropriate reply to the said notices instead of filing the Writ Petition impugning the said notices. It is settled law that when an alternate remedy is available to the aggrieved party, it must exhaust the same before approaching the Writ Court. In Bellary Steels & Alloys Ltd. v. CCT, (2009) 17 SCC 547, this Court had allowed the assessee therein to withdraw the original Writ Petition filed before the High Court as the said proceedings came to be filed against the show-cause notice and observed that the High Court should not have interfered in the matter as the Writ Petition was filed without even reply to the show cause notice. This Court further observed as follows:

"3....In the circumstances, we could have dismissed Neutral Citation 2024:CGHC:12495

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these civil appeals only on the ground of failure to exhaust statutory remedy, but for the fact that huge investments involving the large number of industries is in issue."

13. We are fortified by the decision of this Court in Indo Asahi Glass Co. Ltd. v. ITO, (2002) 10 SCC 444, wherein the assessee had approached this Court against the judgment and order of the High Court which had dismissed the Writ Petition filed by the assessee wherein challenge was made to the show cause notice issued by the Assessing Authority on the ground that alternative remedy was available to the assessee. This Court concurred with the findings and conclusions reached by the High Court and dismissed the said appeal with the following observations:

"5. This and the other facts cannot be taken up for consideration by this Court for the first time. In our opinion, the High Court was right in coming to the conclusion that it is appropriate for the appellants to file a reply to the show- cause notice and take whatever defence is open to them."

14. In the present case, the assessee has invoked the Writ jurisdiction of the High Court at the first instance without first exhausting the alternate remedies provided under the Act. In our considered opinion, at the said stage of proceedings, the High Court ought not have entertained the Writ Petition and instead should have directed the assessee to file reply to the said notices and upon receipt of a decision from the Assessing Authority, if for any reason it is aggrieved by the said decision, to question the same before the forum provided under the Act.

15. In view of the above, without expressing any opinion on the correctness or otherwise of the construction that is placed by the High Court on Section 153C, we set aside the impugned judgment and order. Further, we grant time to the assessee, if it so desires, to file reply/objections, if any, as contemplated in the said notices within 15 days' time from today. If such reply/objections is/are filed within time granted by this Court, the Assessing Authority shall first consider the said reply/objections and thereafter direct the assessee to file the return for the assessment years in question. We make it clear that while framing the assessment order, the Assessing Authority will not be influenced by any observations made by the High Court while disposing of the Writ Petition. If, for any reason, the assessment order goes against the assessee, he/it shall avail and exhaust the remedies available to him/it under the Act, 1961.

20. Hon'ble Supreme Court in case of Commissioner of Income

Tax and Others vs. Chhabil Dass Agrawal {(2014) 1 SCC 603}

has considered remedy of appeal under the Act and has held as Neutral Citation 2024:CGHC:12495

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under:-

15. Thus, while it can be said that this Court has recognized some exceptions to the rule of alternative remedy, i.e., where the statutory authority has not acted in accordance with the provisions of the enactment in question, or in defiance of the fundamental principles of judicial procedure, or has resorted to invoke the provisions which are repealed, or when an order has been passed in total violation of the principles of natural justice, the proposition laid down in Thansingh Nathmal case, Titagarh Paper Mills case and other similar judgments that the High Court will not entertain a petition under Article 226 of the Constitution if an effective alternative remedy is available to the aggrieved person or the statute under which the action complained of has been taken itself contains a mechanism for redressal of grievance still holds the field. Therefore, when a statutory forum is created by law for redressal of grievances, a writ petition should not be entertained ignoring the statutory dispensation.

16. In the instant case, the Act provides complete machinery for the assessment/re-assessment of tax, imposition of penalty and for obtaining relief in respect of any improper orders passed by the Revenue Authorities, and the assessee could not be permitted to abandon that machinery and to invoke the jurisdiction of the High Court under Article 226 of the Constitution when he had adequate remedy open to him by an appeal to the Commissioner of Income Tax (Appeals). The remedy under the statute, however, must be effective and not a mere formality with no substantial relief. In Ram and Shyam Co. vs. State of Haryana, (1985) 3 SCC 267 this Court has noticed that if an appeal is from "Caesar to Caesar's wife" the existence of alternative remedy would be a mirage and an exercise in futility. In the instant case, neither has the assessee-writ petitioner described the available alternate remedy under the Act as ineffectual and non-efficacious while invoking the writ jurisdiction of the High Court nor has the High Court ascribed cogent and satisfactory reasons to have exercised its jurisdiction in the facts of instant case.

17. In light of the same, we are of the considered opinion that the Writ Court ought not to have entertained the Writ Petition filed by the assessee, wherein he has only questioned the correctness or Neutral Citation 2024:CGHC:12495

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otherwise of the notices issued under Section 148 of the Act, the re-assessment orders passed and the consequential demand notices issued thereon.

21. Hon'ble Supreme Court in case of The State of Madhya Pradesh

and Another vs M/s Commercial Engineers and Body

Building Company Ltd {Civil Appeal No. 7170 of 2022 dated

14.10.2022} has considered the alternate remedy of filing of

appeal under the M.P. Value Added Tax, 2002 and has held

under:-

6. At this stage, a recent decision of this Court in the case of The State of Maharashtra and Others v. Greatship (India) Limited (Civil Appeal No. 4956 of 2022, decided on 20.09.2022) is required to be referred to. After taking into consideration the earlier decision of this Court in the case of United Bank of India v. Satyawati Tondon and others, reported in (2010) 8 SCC 110, it is observed and held that in a tax matter when a statutory remedy of appeal is available, the High Court ought not to have entertained the writ petition under Article 226 of the Constitution of India against the Assessment Order by-passing the statutory remedy of appeal.

7. In view of the above and for the reasons stated above and without expressing anything on merits in favour of either of the parties on the Input rebate claimed by the respondent - original writ petitioner, the impugned judgment and order passed by the High Court is hereby quashed and set aside. The writ petition preferred by the respondent herein - original writ petitioner - assessee is hereby dismissed on the ground of alternative efficacious statutory remedy of appeal available to the respondent. The respondent is relegated to prefer an appeal before the appellate authority under Section 46(1) of the MP VAT Act, 2002. If such an appeal is preferred within a period of four weeks from today, the same be entertained and decided and disposed of on merits without raising an issue with respect to limitation, however, subject to compliance of the statutory requirements, if any, for preferring an appeal under Section 46(1) of the MP VAT Act, 2002. The appellate authority to decide and dispose of the appeal and the issue without in any way being influenced by any of the observations made by the High Court which as such is hereby quashed and set aside by the present judgment and order.

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22. Considering the well settled legal position of law and also

considering the fact that the plea of non compliance of principle of

natural justice is a disputed fact and genuineness of the

documents furnished by the petitioner before the Assessing

Officer is again appreciation of facts which can very well be

examined by the Assessing Authority while considering the reply

to the notice and thereafter if any adverse order is passed by the

Appellate Authority while hearing the statutory appeal.

23. In view of the alternate remedies available to the petitioner, the

writ petition is disposed of granting liberty to the petitioner to file

response to the notice dated 31.03.2023 (Annexure P/11) if it has

not been submitted within 45 days from the date of receipt of copy

of the order. In the eventuality of submission of the reply by the

assessee the authority shall consider and decide the same in

accordance with law after giving proper opportunity of hearing to

the petitioner to put forward his case. The authorities shall decide

the case without being influenced by any of the observations

made by this Court as the contentions made before this Court are

left open and will be considered and decided by the authorities

itself on its own merits.

24. Accordingly, the writ petition is disposed off granting liberty in

favour of the petitioner.

Sd/-

(Narendra Kumar Vyas) Judge Deshmukh