Black money: HC dismisses as ‘not maintainable’ batch of pleas

Dismissing as many as six petitions, a division bench of Justice Ali Mohammad Magrey and Justice Mohammad Akram Chowdhary held that the petitioners had not exhausted the remedy before the Commissioner of Appeals as provided under the Act.
 J&K High Court, Srinagar
J&K High Court, SrinagarMubashir Khan/GK File

Srinagar, Sept 16: The J&K and Ladakh High Court on Friday dismissed as “not maintainable” a batch of petitions related to Black Money (Undisclosed Foreign Income and Assets) and Imposition of Tax Act, 2015.

Dismissing as many as six petitions, a division bench of Justice Ali Mohammad Magrey and Justice Mohammad Akram Chowdhary held that the petitioners had not exhausted the remedy before the Commissioner of Appeals as provided under the Act.  

“The Act of 2015 provides complete machinery for the person aggrieved of any action taken by the Assessing Officer and the said person 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 the adequate remedy open to him by way of an appeal to the Commissioner of Appeals,” Court said.  

Underscoring that  the remedy under the statute must be effective and not a mere formality with no substantial relief, the Court said: “In the present case, neither have the petitioners described the available alternate remedy under the Act of 2015 as ineffectual and non-efficacious while invoking the Writ jurisdiction of this Court nor have they ascribed cogent and satisfactory reasons before the Court so as to enable it to exercise jurisdiction under Article 226 of the Constitution in tune with the facts and circumstances of the case.”

 All the contentions of the petitioners including the issue of jurisdiction, applicability or otherwise of the Act, the Court said, can very conveniently be dealt with by the Appellate Authority in tune with the mandate of sections 15 and 17 of the Black Money Act. 

The court was hearing petitions filed by the petitioners who were represented by senior counsel P Chidambaram and senior advocate Altaf Naik.

 The petitioners submitted that the action initiated by the ‘assessing authority’ was without jurisdiction as the provisions of the Black Money Act under the shade and cover of which the entire action had been initiated were not applicable to the asset subject matter of the case in hand, being created by Non-Resident Indians out of income generated abroad which was not chargeable to tax in India.   

On the other hand, advocate Areeb Javed Kawoosa with advocate Aatir Javed Kawoosa representing Department of  Income Tax Investigation Wing, T S Shamsi DSGI on behalf of Union of India contended that the petitions were not maintainable in light of the existence of the alternate remedy of the appeal under the statute. “The petitioners were beneficial owners of the assets of a Trust and having received huge amount from the Trust, had not declared the same in their income tax return, as such the assessment order was covered under the Black Money Act”, they said.      

Meanwhile, the Court asked the authorities not to take any punitive action against petitioners in case they file appeal before the Commissioner of Appeals within one month. 

“Having regard to the fact that the petitioners have been bonafidely pursuing their claim before this Court by filing these writ petitions under Article 226 of the constitution at the relevant point of time and, admittedly, the decision in these writ petitions has consumed more than one year, grant liberty to the petitioners to avail the statutory remedy of appeal against the proceedings initiated against them by (authorities) including the show cause notices, assessment orders, penalty notices, demand notices, within one month from the date of announcement of this Judgment,” the court said.

 “In the event any such appeal or appeals are filed before the appellate authority within the time so granted by this Court in accordance with the mandate of the Act of 2015, the appellate authority shall consider the same only on merits without making any reference to the period of limitation and, till then, no punitive action shall be taken against the petitioners,” it added.   

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