1 IN HIGH COURT OF KARNATAKA AT BENGALURU ON 3RD DAY OF FEBRUARY, 2020 BEFORE HON'BLE MR. JUSTICE RAVI MALIMATH AND HON'BLE MR. JUSTICE M.I.ARUN WRIT APPEAL No.991 OF 2018 (T-IT) BETWEEN: M/S TELEKOM MALAYSIA BERHAD LEVEL 11, NORTH WING MENARA TM, JALAN PANTAI BAHARU 50672 KUALA LUMPUR, MALAYSIA REPRESENTED BY ITS MANAGING DIRECTOR NOW MOHAMMED SHAZALLI BIN RAMLY ... APPELLANT (BY SRI. TUSHAR JARWAL, ADVOCATE FOR SRI. C.K. NANDA KUMAR, ADVOCATE) AND: 1. UNION OF INDIA MINISTRY OF FINANCE THROUGH ITS SECRETARY NORTH BLOCK, NEW DELHI 110 001 2. DEPUTY DIRECTOR OF INCOME TAX (INTERNATIONAL TAXATION) CIRCLE 2(1), BENGALURU BMTC BUILDING, ROOM NO.440 4TH FLOOR, 80 FEET ROAD KORAMANGALA BENGALURU 560 095 2 3. COMMISSIONER OF INCOME TAX (INTERNATIONAL TAXATION), BENGALURU BMTC BUILDING, 80 FEET ROAD 6TH BLOCK, KORAMANGALA BENGALURU 560 095 ... RESPONDENTS (ASG FOR R1; SRI. E.I. SANMATHI, ADVOCATE FOR R2 AND R3) THIS WRIT APPEAL IS FILED UNDER SECTION 4 OF KARNATAKA HIGH COURT ACT PRAYING TO SET ASIDE IMPUGNED ORDER OF LEARNED SINGLE JUDGE OF THIS COURT DATED 12.02.2018 IN WRIT PETITION NO.5914 OF 2018 (T-IT) AND ALLOW WRIT PETITION NO.5914 OF 2018 (T-IT). THIS WRIT APPEAL COMING ON FOR ADMISSION, THIS DAY, RAVI MALIMATH J., DELIVERED FOLLOWING: JUDGMENT Aggrieved by order dated 12.02.2018 passed by learned Single Judge, in dismissing writ petition No.5914 of 2018, writ petitioner is in appeal. 2. case of petitioner is that it is Malaysian company incorporated under laws of Malaysia and has its registered office in Kuala Lumpur, Malaysia. It does not have any office or presence in India. Respondent no.2-Deputy Commissioner of Income Tax 3 for assessment year 2009-10 raised demand dated 18.12.2017 for sum of Rs.20,84,448/- against petitioner-company. reassessment order was sought to be challenged before learned Single Judge of this Court on ground that alleged breach of principles of natural justice by respondent-assessing authority namely, non-service of statutory notice under Section 148 of Income Tax Act ( Act for short) and non-grant of adequate opportunity to raise objections. It was contended before learned Single Judge that petitioner has not received any notice under Section 147/148 of Act at Malaysian address. first notice received by them is dated 01.12.2017 and same was received by them on 08.12.2017. Immediately thereafter, communication was sent by Email to respondent no.2-Deputy Commissioner on 15.12.2017 asking for time. Thereafter, three notices were issued under Section 142(1) of Act requiring attendance of Company before tax authorities. It would 4 appear that petitioner-Company did not respond to any of communications. Therefore, learned Single Judge was of view that, there is no reason to disbelieve that despite categorical averments in impugned order that right from notice dated 29.03.2016, at least three more notices were served on petitioner-company, petitioner-company was not aware of pending proceedings. 3. learned Single Judge also noticed that in terms of letter dated 28.12.2017 vide Annexure-D to writ petition, same would indicate attitude and non-cooperation of petitioner- company in tax proceedings initiated by Income Tax Department. That if foreign company was ignorant of even basic requirements of obtaining PAN number from Income Tax Department, it has to blame itself rather than respondent-authorities. That proceedings having been initiated from month of March 2016 followed by various notices on 29.03.2016, 02.06.2017, 5 12.07.2017, 11.10.2017 and 16.10.2017 followed by letter dated 07.11.2017 which would all indicate that there is no violation of principles of natural justice. That petitioner has deliberately avoided to approach concerned authorities. Notwithstanding same, in view of fact that assessee has alternative and efficacious remedy of filing appeal, learned Single Judge was of view that exercise of writ jurisdiction under Article 226 of Constitution of India was uncalled for. Hence, writ petition was dismissed. 4. Sri Tushar Jarwal, learned counsel appearing for appellant s counsel contends that order passed by learned Single Judge is incorrect. He relies on judgment of Hon ble Supreme Court in case of Calcutta Discount Co. Ltd. vs. Income-Tax Officer, Companies District I, Calcutta and another reported in (1961) 41 ITR 191. He contends that in terms of judgment of Hon ble Supreme Court, since question of jurisdiction has been questioned, writ 6 court should have entertained this plea. That plea of petitioner is that authorities do not have any jurisdiction to issue notice under Section 147 of Act. Therefore, said judgment covers issue on hand. We have considered judgment at length. We asked question to appellant as to why order of learned Single Judge is erroneous in view of availability of alternative and efficacious remedy. His reliance placed on Calcutta Discount Co.Ltd. case reported in (1961) 41 ITR 191, in our considered view, is misplaced. In spite of repeatedly asking learned counsel, he is unable to point out that portion of order wherein alternative remedy has been discussed by Hon ble Supreme Court. As we understand, issue therein was with regard to jurisdiction in issuing notice under erstwhile Section 34 of Act. Hon ble Supreme Court went into merits of matter and came to conclusion on question regarding jurisdiction of authority to issue 7 impugned notice. However, question for consideration is not question of jurisdiction. Initially, burden which appellant would have to overcome is on issue of alternative and efficacious remedy. When such remedy is available, necessarily writ court would relegate petitioner to alternative remedy. Therefore, we do not find anything in said judgment that affects question of alternative or efficacious remedy. consideration on issue as to whether notice under erstwhile Section 34 of Act lacks jurisdiction or not is question of fact and appreciation. Such appreciation can be done provided learned Single Judge exercising his jurisdiction under Article 226 of Constitution of India would hold that, even though there is alternative and efficacious remedy, same is not useful to petitioner and therefore, writ jurisdiction requires to be exercised. It is only when such reasoning is assigned by learned Single Judge that 8 availability of alternative and efficacious remedy becomes secondary. However, if there is no finding recorded as to why writ jurisdiction is being exercised then necessarily alternative and efficacious remedy would have to be undergone. We do not find that was law declared by Hon ble Supreme Court in Calcutta Discount Co. Ltd. case. issue pertained therein was with regard to jurisdiction in issuing notice and not availability of alternative and efficacious remedy. Hence, said judgment is of no avail to appellant s counsel. 5. second judgment relied upon is that of Hon ble Supreme Court in case of Madhya Pradesh Industries Ltd. vs. Income-Tax Officer reported in (1965) 56 ITR (Sh.N.) 18. Reliance therein is placed at last paragraphs of pages 640 and 641 to contend that writ jurisdiction can be entertained even though there is alternative and efficacious remedy. We have considered judgment at length. facts therein would indicate that High Court dismissed 9 writ petition in limine. Hon ble Supreme Court held in last paragraph at page 642 as follows: We may add that we do not desire to fetter discretion of High Court to deal with petition according to law and in light of well-recognised principles relating to exercise of its jurisdiction, after opportunity is given to Income-tax Officer to meet allegations made in petition. We may also observe that we are constrained to set aside order because we have no indication as to grounds on which High Court has rejected petition which, prima facie, makes out case which may require investigation and trial. It is on this ground that Hon ble Supreme Court even though there is alternative and efficacious remedy entertained writ petition and remitted matter to Income Tax Officer. This was case where High Court dismissed writ petition without giving any reasons and Hon ble Supreme Court observed that they have no indication at all as to ground on which High Court dismissed writ petition. That is not fact situation herein. Hence, said judgment is not applicable. 10 6. Reliance is placed on Division Bench judgment of this Court in case of Jeans Knit P. Ltd. vs. Deputy Commissioner of Income-Tax and Others reported in [2014] 367 ITR 773 wherein appellant therein was relegated to remedy of alternative and efficacious remedy. said matter along with other cases was challenged before Hon ble Supreme Court in Civil Appeal No.11189 of 2016 wherein Hon ble Supreme Court set aside impugned orders and remitted cases to respective High Courts to decide writ petitions on merits by holding that view taken by various High Courts is contrary to law laid down by Hon ble Supreme Court in Calcutta Discount Co. Ltd. vs. Income-Tax Officer, Companies District I, Calcutta and another reported in (1961) 41 ITR 191. Hon ble Supreme Court therein also noted judgment of Hon ble Supreme Court in case of Commissioner of Income-Tax and Others v. Chhabil Dass Agarwal reported in [2013] 357 ITR 357 wherein 11 it was held that in availability of alternative and efficacious remedy, writ Court should normally not interfere. We have considered said judgment at length. question of considering matter on merits would arise after finding is recorded that alternative remedy is not efficacious remedy. However, as held herein above, said issue was not considered by Hon ble Supreme Court in Calcutta Discount Co.Ltd. case reported in (1961) 41 ITR 191. Therefore, we are of view that said judgment would be of no avail to appellant. 7. Reliance is also placed on yet another judgment of Division Bench of this Court in case of Joint Commissioner of Income-Tax (LTU) and another v. Dell India Pvt.Ltd. reported in [2016] 382 ITR 310 wherein it was held that in facts of present case, view of learned Single Judge that writ petition is maintainable on question of jurisdiction of issuance of notice under Section 148 of Income Tax Act was upheld. It is needless to state that 12 judgment has been rendered on facts and circumstances of case involved therein. same is not applicable to present case on hand. 8. Reliance is also placed on decision of Hon ble Supreme Court in case of Godrej Sara Lee Limited vs. Assistant Commissioner (AA) and another reported in (2009)14 SCC 338 to contend that High Court can exercise its writ jurisdiction when action of authority is questioned on ground of lack of jurisdiction. Therefore, alternative remedy may not be bar. We have considered judgment at length. Petition therein involved validity of impugned notifications issued by State under Kerala Value Added Tax Act, 2003. However, that is not case herein. What is being contended on merits of matter is with regard to jurisdiction of authority. There is no question involved regarding availability of alternative and efficacious remedy in said order. Hence, said judgment is not applicable. 13 9. On other hand, counsel for respondent nos.2 and 3 relies upon judgment of Hon ble Supreme Court in GKN Driveshafts (India) Ltd. v. Income Tax Officer and Others reported in (2003)1 SCC 72 wherein Hon ble Supreme Court held that proper course of action to question notice issued under Section 147 of Act is for assesee to file return. Therefore, writ court should restrain itself from entertaining such matters. Reliance is also placed on judgment of Hon ble Supreme Court in Commissioner of Income-Tax and Others vs. Chhabil Dass Agarwal reported in [2013] 357 ITR 357 (SC) wherein Hon ble Supreme Court held at paragraph 19 as follows: Thus, while it can be said that this court has recognized some exceptions to rule of alternative remedy, i.e., where statutory authority has not acted in accordance with provisions of enactment in question, or in defiance of fundamental principles of judicial procedure, or has resorted to invoke provisions which are repealed, or when order has been passed in total violation of principles of natural justice, proposition 14 laid down in Thansingh Nathmal s case, Titagarh Paper Mills case and other similar judgments that High Court will not entertain petition under article 226 of Constitution if effective alternative remedy is available to aggrieved person or statute under which action complained of has been taken itself contains mechanism for redressal of grievance still holds field. Therefore, when statutory forum is created by law for redressal of grievances, writ petition should not be entertained ignoring statutory dispensation. 10. On considering said judgments as cited herein above, we are of view that in existence of alternative and efficacious remedy, it would be improper for writ court to exercise its jurisdiction. question of whether notice issued under Section 147 of Act is justified or not is once again question of fact. As questions of fact cannot be gone into by writ court, it would necessarily have to be done by concerned authorities. Even assuming that learned Single Judge exercised writ jurisdiction, then reference as to why alternative remedy is not efficacious remedy would have to 15 spelt out. Even on considering alternative and efficacious remedy, we do not find that rights of petitioner are infringed only because he has to file appeal against said order. 11. For all these reasons, we are of view that there is no reason to interfere with well considered order passed by learned Single Judge. Hence, writ appeal is dismissed. amount said to have been deposited in terms of order dated 10.04.2018 shall be dealt with by authorities in manner known to law. Pending I.As. stand rejected. Sd/- JUDGE Sd/- JUDGE hkh. Telekom Malaysia Berhad v. Union of India, New Delhi / Deputy Director of Income-tax (International Taxation) Circle 2(1), Bengaluru / Commissioner of Income-tax (International Taxation), Bengaluru