COMMISSIONER OF TRADE AND TAXES AND ORS.versusMIS AHLUWALIA CONTRACTS (INDIA) LTD.

                            [2017] 10 S.C.R. 50


A        COMMISSIONER OF TRADE AND TAXES AND ORS.
                                     v.
             MIS AHLUWALIA CONTRACTS (INDIA) LTD.
                  (Civil Appeal Nos. 15605-15606 of2017)
B                           OCTOBER 4, 2017
             [RANJAN GOGOi AND NAVIN SINHA, JJ.]
         Delhi Value Added Tax Act. 2004: Section 107 - Delhi Tax
  Compliance Achievement Scheme, 2013 - Clause 8 - Power and
C jurisdiction of tlze Designated Authority to issue notice under - On
  facts, issuance of notice under clause 8 by Additional Commissioner
  to assessee - In reply no objection raised by assessee as regards
  the jurisdiction of the Additional Commissioner - However, writ
  petition by assessee challenging the jurisdiction of the Additional
   Commissioner to issue show cause notice and that the notice was
D time barred - Writ petitions allowed - On appeal, held: Power to
  issue the notice under clause 8 is vested with the Commissioner and
  not in the Designated Authority - Government order dated J(Jh April,
  2014 cannot be construed to be an exercise of delegation of powers
  vested in the Commissioner under Clause 8 to Designated
E Authority - Thus, the Additional Commissioner was not competent
  to issue notice - HowePer; the conduct of the assessee in raising the
  issue in writ petitions and not earlier was not bonafide, thus, cannot
  be allowed to take adJJantage of its own wrong - Higlz Court should
  have issued directions permitting initiation of fresh proceedings, if
  the Revenue was so inclined - High Court having failed to do so,
F the error is corrected - Issuance of directions to enable the RePenue
  to issue a fresh notice to assessee under clause 8, if it so desires.
          Allowing the appeals, the Court
        HELD: 1.1 What category of officers would come within
  the expression "designated authority" is contemplated by the
G definition contained in clause 2 (c) of the Delhi Tax. Compliance
  Achievement Scheme, 2013. An Officer not below the rank of
  Joint Commissioner as may be n9tified by the Commissioner
  would be a designated authority under the Scheme. Clause 4 of
  the Scheme requires a declaration of the tax due to be made to
H the designated authority and, thereafter, following the procedure
                                  50
 COMMISSIONER OF TRADE AND TAXES AND ORS. v. MIS                    51
       AHLUWALIA CONTRACTS (INDIA) LTD.

prescribed by the various sub-clauses of clause 4, the Designated A
Authority is empowered to issue the acknowledgment of
discharge of dues under clause 4 (7) of the Scheme. [Paras 12,
13] [60-A-C]
       1.2 Under clause 8 of the said scheme, the Commissioner
is vested with the power, to be exercised for reasons recorded in B
writing, to issue notice to the assessee requiring him to show
cause as to why he should not pay the tax/ dues unpaid or short
paid as per the provisions of the scheme. The power to issue the
notice under clause 8 is undoubtedly vested with the
Commissioner and not in the Designated Authority. What is
vested in the Designated Authority is the power under clause 4
                                                                  c
of the Scheme which is the power to hear and decide applications
and issue acknowledgments of discharge on due satisfaction. The
said power to hear and decide applications, by no means, would
include the power to reopen a decided matter which is what clause
8 specifically contemplates. The Government order dated 30 1h D
April, 2014 relied upon by the Revenue as a delegation of the
power under clause 8, on a plain reading thereof, is only an
empowerment of a particular Additional Commissioner of a
particular Zone (Zone may have several Additional
Commissioners) to hear and decide applications filed under the
Scheme. The said G.O dated 30.04.2014 cannot be construed to E
be an exercise of delegation of powers vested in the
Commissioner under Clause 8 to Designated Authority. The plain
language contained in the said G.O is capable of sustaining the
said conclusion. Thus, the Additional Commissioner who had
issued the show cause notice under clause 8 in the instant case F
was not competent to do so and on that basis the conclusion of
the High Court on the said question is affirmed. [Para 14] [60-C-
G]
      1.3 The declarations in the instant case were issued to the
assessee on 18.02.2014 and 28.02.2014 respectively. The show        a
cause notice under Clause 8 was issued on 16.01.2015. The reply
was submitted by the respondent on 27.01.2015. The adjudication
was completed by the Order dated 11.02.2015 against which the
respondent-Assessee filed a writ petition before the High Court
on 4.03.2015. In the reply filed by the respondent-Assessee to
                                                                    H
52           SUPREME COURT REPORTS                    [2017] 10 S.C.R.


A the show cause notice or in the proceedings pursuant thereto,
  no objection was taken by the assessee to the power and
  jurisdiction of the Additional Commissioner to issue the notice
  in question. The adjudication order, therefore, did not deal with
  the said issue. It is only after the period of one year from the date
  of declaration was over that the writ petition was filed wherein
B
  the question of jurisdiction of the Additional Commissioner was
  raised for the first time. It is in these facts that the High Court
  took the view that as the period of limitation prescribed by Clause
  8(3) was over, fresh proceedings stood barred by time. [Para Hi]
  [60-H; 61-A-C]
c        1.4 While it is correct that the failure to raise the issue of
  jurisdiction by the assessee will not necessarily clothe the
  Additional Commissioner with the jurisdiction if the same is not
  contemplated by law, there are certain aspects of the case which
  need to be considered. Had the assessee raised tl•e question of
D jurisdiction in its reply or in the course of the adjudication
  proceedings there would have been still time for the
  Commissioner to cure the defect and issue a valid notice. Cases
  under Amnesty Scheme would fall outside the arena of ordinary
  and routine matters and, thus, it is possible to attribute a genuine
  mistake on the part of the Additional Commissioner in invoking
E jurisdiction under Clause 8. [Para 17] [61-D-F]
          1.5 Clause 8(3) of the Amnesty Scheme will have no
   application, where the initial show cause notice WflS issued within
   time and its legitimacy was not contested by the respondent-
   Assessee. Had such legitimacy been questioned at the stage of
F reply or even in the course of the adjudication proceedings, there
   would still have been room/ time for the revenue to correct the
   error that had occurred. A rectified Notice could even have been
   issued after the order of adjudication was passed on 11.02.2015.
   The close proximity of time between the reply submitted by the
G assessee to the Show Cause Notice (27 .01.2015) and the
   proceedings in adjudication on the one hand and the date of filing
   of the Writ Petition would permit to infer that the conduct of the
   assessee in raising the issue in the writ petitions and not earlier
   was not entirely bonafide. The respondent-Assessee, therefore,
   can11ot be allowed to take advantage of its ow11 wro11g. The courts
H.
  COMMISSIONER OF TRADE AND TAXES AND ORS. v. M/S                               . 53
        AHLUWALIA CONTRACTS (INDIA) LTD.

exercising extraordinary jurisdiction cannot be understood to be A
helpless but concede to the assessee an undeserved victory over
the Revenue. The power of the High Court under Article 226 of
the Constitution, wide and pervasive as it is, should have enabled
the High Court to appropriately deal with the situation and issue
consequential directions permitting initiation of fresh proceedings,
                                                                     B
if the Revenue was so inclined. The High Court having failed to
so act, the error is corrected and directions is issued to enable
the Revenue to issue a fresh notice to the assessee under clause
8 of the Amnesty Scheme, if it so desires and is so advised. [Para
19] [64-D-H; 65-A]
       Grindlays Bank Ltd. vs. Income Tax Officer, Calcutta                      c
       and Ors. (1980) 2 SCC 191 : [1980] 2 SCR 765.
                       Case Law Reference
[1980] 2 SCR 765          referred to         Para 18
      CIVIL APPELLATE JURISDICTION: Civil Appeal No. 15605-                      D
15606of2017      ·
      From the Judgment and Order dated 28.04.2016 of the High Court
of Delhi at New Delhi in W. P. (C) No. 2536 of 2015 and W. P. (C) No.
3909of2015.
                                 WITH
                                                                                 E
      C. A. NOS. 15608 and 15607 of 2017.
      Maninder Singh, ASG, Jayant Mohan, Vijay Prakash, Rajat Nair,
B. V. Bairam Das, B. Krishna Prasad, Advs. for the Appellants.
      S. Ganesh, Sr. Adv., S.K. Sarwal, Sumit Batra, Mohinder Jit Singh,
Advs. for the Respondent:
                                                                                 F
      The Judgment of the Court was delivered by
       RANJAN GOGOi, J. 1. Leave granted.
        2. A recital of the facts of the Civil Appeals arising out of Special
 Leave Petition (Civil) Nos.9631-9632 of2017 alone are being made as
.the facts in the other connected proceedings [i.e. Civil Appeals arising        G
 out of Special Leave Petition (Civil) Nos.10485/2017 and 9633/2017]
 are largely similar.            ·
      3. The challenge by the Revenue is to an order of the High Court
of Delhi by which the High Court has allowed the writ petitions filed by
the respondents - Assessees challenging the orders issued by the H
54            SUPREME COURT REPORTS                           [2017] IO S.C.R.



A    Designated Authority i.e. Additional Commissioner of Income Tax
     rejecting the applications filed by the Respondent writ petitioners under
     the Delhi Tax Compliance Achievement Scheme, 2013 (hereinafter
     referred to as "the Amnesty Scheme"), details of which are noted below.
            4. Under Section 107 of the Delhi Value Added Tax Act, 2004
B    (hereinafter referred to as "the DVAT Act"), the Government of National
     Capital Territory of Delhi ("GNCTD" for short) is empowered to notify
     amnesty scheme(s) covering payment of tax, interest, penalty or any
     other dues under the DVAT Act relating to any period ending before 1''
     April, 2013.
c           5. In exercise of powers under Section 107 of the DVAT Act, an
     Amnesty Scheme was notified by the GNCDT on 201h September, 2013.
     Clause 2(c) of the Amnesty Scheme which defines the 'designated
     authority'; clause 4 which delineates the procedure for making declaration
     and payment of tax dues; clause 5 which deals with immunity from
     interest, penalty and other proceedings; and the provisions of clause 8
D    which deals with the failure to make true declarations would require a
     consideration of the Court. The same are, therefore, reproduced below
     for convenience:
             "2(c) "designated authority" means officer(s) not below the rank
             of Joint Commisioner as notified by the Commissioner, Value
E            Added Tax for the purposes of this Scheme;
                      ***              ***              ***
             4. Procedure for making declaration and payment of tax dues -
             (1) Subject to the other provisions of this Scheme, a person may
             make a declaration of the tax dues to the designated authority on
F            or before the 31" day ofJanuary 2014 in Form DSC-I appended
             to this notification.
             (2) The designated authority shall acknowledge the receipt of
             declaration in Form DSC-2 appended to this notification, within
             a period of fifteen working days from the date of receipt of the
G            declaration.
             (3) The declarant shall pay not less than fifty per cent of the tax
             dues declared under sub-clause (1) along with the declaration
             and submit proof of such payment to the designated authority.
             (4) The remaining amount of tax dues or part thereof remaining
H            to be paid after adjusting the payment made under sub-clause
COMMISSIONER OF TRADE AND TAXES v. MIS AHLUWALIA                              55
    CONTRACTS (INDIA) LTD. [RANJAN GOGOI, J.]

     (3) sha\1 be paid by the declarant on or before the 21 ''day of A
     March, 2014.
      (5) Notwithstanding anything contained in sub-clause (3) and
      sub-clause (4), any tax which becomes due or payable by the
    · declarant for the tax period(s) beginning from 1 day of April,
      2013 and thereafter shall be paid by him in accordance with the         B
      provisions of the Act:
      Provided that where an unregistered dealer has made declaration
     referred to in sub-clause (l) of this clause, such dealer shall
     obtain registration and pay net ta)\ for the period from 1 day of
     April, 2013 to the date of regisration and furnish return in Form        c
     DVAT-16 for that period along with proof of payment in Form
     DVAT-20 to the designated authority at the time of furnishing of
     declaration under this Scheme. Such a dealer shall be eligible
     for immunity under clause 5 ofteh Scheme for late payment of
     such tax and non-filing of return under the Act.
                                                                              D
     (6) The declarant shall furnish to the designated authority, details
     of payment made from time to time under this Scheme along
     with a copy of acknowledgement issued to him under sub-clause
     (2).
     (7) On furnishing the details of full payment of declared tax dues       E
     payable under sub-clause (4), the designated authority shall issue
     ah acknowledgement of discharge of such dues within fifteen
     days to the declarant in Form DSC-3 appended to this
     notification.
     (8) A dealer who has not taken registration shall obtain registration
                                                                              F
     prior to filing of declaration as referred in sub-clause (1) of clause
     4. Likewise, a person who is responsible for making deduction
     of tax under section 36A of the Act, shall obtain a Tax Deduction
     Account Number (TAN), if not already obtained.

              ***               ***               ***                         G
     5. Immunity from interest. penalty and other proceedings.-(1)
     Notwithstanding anything contained in any provision of the
     Scheme, the declarant, upon payment of the tax dues declared
     by him under sub-clause (1) of clause 4, shall get immunity from

                                                                              H
56    SUPREME COURT REPORTS                          [2017] IO S.C.R.


A    penalty or penalties, interest other than interest payable in terms
     of sub-clauses (2) and (4) of clause 3, prosecution or any other
     proceedings under the Act or, as the case may be, under the
     Central Sales Tax Act, 1956 or the erstwhile Delhi Sales Tax
     Act, 1975 (43 of 1975) or the Delhi Sales Tax on Works Contract
     Act, 1999 (Delhi Act 9 of 1999) or the Delhi Sales Tax on Right
B
     to Use Goods Act, 2002 (Delhi Act 13 of 2002) or the Delhi Tax
     on Entry of Motor Vehicles into Local areas Act, 1994 (Delhi
     Act4of1995), in relation to the tax dues declared by the declarant;
     and from penalty and prosecution for non-registration and non-
     furnishing of returns in time.
c    Explanation.- For the purpose of this sub-clause, the term
     "declarant" shall include-
     (i) in relation to the declarant being a contractee, who has awarded
     the works contract under section 36A( 1) of the Act, his immediate
     contractor. to whom he has awarded the works contract, to the
D    extent of amount declared by the contractee; and
     (ii) in relation to the declarant being a contractor, his immedii~te
     contractee who has awarded the works contract under section
     36A(I) of the Act.

E    Explanation -For removal of doubts, it is hereby declared that, to
     avoid double taxation, if the contractee has declared tax clues,
     his immediate contractor will also get immunity to that extent.
     and vice-versa.
     (2) Subject to the provisions of clause 8, a declaration made
F    under sub-clause (I) of clause 4 shall become conclusive upon
     issuance of acknowledgement of discharge under sub-clause (7)
     of clause 4 and no matter shall be reopened/ reassessed/ reviewed
     thereafter in any proceedings under this Scheme or under the
     Act before any authority or court relating to the period covered
     by such declaration to the extent of tax dues declared by the
G    declarant.
     (3) All statutory appeals/ revisions pending before quasi-judcial
     forums upto the stage of Tribunal shall be deemed to have been
     withdrawn once the Scheme is opted for. Further, all matters
     pending in the High Court and Supreme Court shall be withdrawn
H    by the declarant and he will need to submit the application filed
COMMISSIONER OF TRADE AND TAXES v. M/S AHLUWALIA                                 57
    CONTRACTS (INDIA) LTD. [RANJAN GOGOI, J.]

        for withdraw I with the declaration. for the case to be withdrawn -A
        before the court.
        (4) No proceeding shall be instituted within 48 hours of securing
        a registration, provided, the registrant declares his intent of opting
        under the Scheme at the time of applying for TIN/ TAN.
        (5) The information gathered vide a declaration under the scheme         B
        shall be kept confidential and shall not be used_ except under the
        Scheme and the same shall not be shared with any other person/
        government department/agency.
                 ***               ***               ***
                                                                                 ('
        8. Failure to make true declaration.- (I) Notwithstanding anything
        contained in clause 5 of the Scheme, where the Commissioner
        has, fora period beginning from 1st April, 2009, reasons to believe
        that the declaration was false in material particulars, he may, for
        re:::sons to be rerorded in writing, serve notice on the declarant
        in respect of such declaration requiring him to show cause as to         D
        why he should not be required to pay the tax dues unpaid or
        short-paid as per the provisions of the Scheme.
        (2) If the Commissioner is satisfied, for reasons to be recorded
        in writing, that the declaration made by the dealer was
        substantially false, ·                                                   E
        (i) he shall within three months of service of notice under sub-
        clause ( 1) make assessment of tax and penalty under section 32
        and 33 of the Act, as if that dealer had never made declaration
        under this Scheme. However, the dealer shall be entitled to the
        credit of tax paid by him under this Scheme; and                         F
        (ii) such dealer may be proceeded under sub-section (2) of section
        89 of the Act for furnishing of false declaration.
        (3) No notice shall be issued under sub-clause (1) of this clause
        after the expiry of one year from the date of declaration."
                                                                                 G
      6. There is no dispute between the parties that on the basis of the
declaration filed by the respondent-Assessee, the Designated Authority
had issued the '"acknowledgement of discharge" in favour of the
respondent- Assessee. However, on l 61h January, 2015 a show cause
notice in exercise of powers under clause 8 of the Amnesty Scheme
                                                                                 H
58            SUPREME COURT REPORTS                         [2017] 10 S.C.R.


A    was issued by the Additional Commissioner (Sp!. Zone), Department of
     Trade and Taxes, New Delhi to which the respondent - Assessee
     submitted its reply on 27'h January, 2015. In the reply so submitted, the
     respondent - Assessee did not raise any question with regard to the
     jurisdiction of the Additional Commissioner to issue the show cause notice
     under clause 8. The adjudication was finalized by order dated l J'h
B
     February, 2015 which was served to the Assessee. The Assessee then
     filed the writ petitions in question before the High Court contending,
     inter alia, that the show cause dated l 6'h January, 2015 was unauthorized
     and without jurisdiction inasmuch as.the power to issue such notice under
     clause 8 is vested with the Commissi0ner and the same had not been
C    delegated to the Designated Authority i.e. the concerned Additional
     Commissioner. The said contention found favour with the High Court.
     Accordingly, the writ petitions filed by the respondents-Assessees were
     allowed and the impugned consequential proceedings were interfered
     with. The High Court also took the view that as under clause 8(3) of the
D    Amnesty Scheme show cause notice has to be issued within one year of
     the date of declaration which in the present case was made on 1S'h
     February, 2014 and 28'h February, 2014, respectively, issuance of any
     further/fresh show cause notice was time barred. Aggrieved the Revenue
     is in appeal before this Court.
             7. Shri Maninder Singh, learned Additional Solicitor General
E    appearing for the Revenue has vehemently contended that the
     Government Order dated 30'h April, 2014 contains a clear delegation of
     the power under clause 8 of the Amnesty Scheme by the Commissioner
     to the Designated Authority. The power of disposal of the application
     received under the Scheme, according to the learned ASG, must
F    necessarily include the power to finalize the matter after issuing the
     show cause notice under clause 8 in an appropriate case. Learned ASG
     has further urged that under clause 4 the declarations are required to be
     considered by the Designated Authority i.e. the Additional Commissioner.
     It is natural that the power to reopen the cases concluded on mistaken/
     suppressed facts must be understood to have been available to the
G    Designated Authority at all times.
           8. The above contentions are contested by Shri S. Ganesh, learned
     Senior Counsel appearing for the respondents - Assessees who has
     urged that keeping in mind the necessity of finality of decisions under
     the Amnesty Scheme, the power of reopening the concluded cases by
H
COMMISSIONER OF TRADE AND TAXES v. M/S AHLUWALIA                                59
    CONTRACTS (INDIA) LTD. [RANJAN GOGOI, J.]

issuing show cause notices has been conferred on a higher authority i.e. A
the Commissioner. The said power has to be distinguished from the power
to decide an application filed, which is vested in the designated authority
under Clause 4. It is urged that in the present case the power vested in
the Commissioner under clause 8 has not been delegated to any other
authority, in the absence whereof, it was not open for the Additional B
Commissioner to issue the impugned show cause notice dated 16'h
January, 2015. The fact that the Assessee did not raise the issue of
jurisdiction before the Adjudicating Authority would not clothe the
Additional Commissioner with the jurisdiction to issue the show cause
notice. As the said issue is primarily a question oflaw which goes to the
root of the matter the question could always have been raised before the C
High Court. The same having been so raised and answered by the High
Court, the answer provided needs to be dealt with by this Court on merits
and ought not to be foreclosed merely on the ground that the respondents
-Assessees had not raised the same in the course of the adjudication of
the show cause noti..:e. Learned Senior Counsel has referred to the
                                                                            D
provisions of clause 8(3) of the Amnesty Scheme to contend that the
show cause notice under clause 8 has to be issued within one year of the
date of declaration/declarations and there is no enabling provision to
condone any delay that has occurred or extend the time stipulated by
clause 8(3). As the period of one year from the date of declaration is
long over, in the event this Court is to hold that the impugned show cause E
notice was issued by the Authority which did not have the power and
jurisdiction to so act the question of issuance of any fresh/revised notice
does not arise.
      9. On the rival contentions, two issues arise for consideration in
the present appeal.                                                             F
        10. The first relates to the power and jurisdiction of the Designated
Authority to issue the notice under clause 8 of the Amnesty Scheme.
Related, is whether, in the present case, there has been any delegation
of the said power which is vesti.,d in the Commissionerunder the af.oresaid
clause 8.                                                                       G
        11. The second issue arising would depend on an answer to the
first, namely, if it is to be held that the Designated Authority is not
empowered to act under clause 8, whether a fresh notice under the
aforesaid clause of the scheme can still be issued by the competent
authority i.e. the Commissioner or the delegatee of the Commissioner.           H
60            SUPREME COURT REPORTS                          (2017] IO S.C.R.


A           12. What category of officers w9uld come within the expression
     "designated authority" is contemplated by the definition contained in
     clause 2 (c) of the Amnesty Scheme. An Officer not below the rank of
     Joint Commissioner as may be notified by the Commissioner would be a
     designated authority under the Scheme.
B          13. Clause 4 of the Scheme requires a declaration of the tax due
     to be made to the designated authority and, thereafter, following the
     procedure prescribed by the various ·sub-clauses of clause 4, the
     Designated Authority is empowered to issue the acknowledgment of
     discharge of dues under clause 4 (7) of the Scheme.
c        14. Under clause 8 of the aforesaid scheme, Lhe Commissioner is
  vested with the power, to be exercised for reasons recorded in writing,
  to issue notice to the assessee requiring him to show cause as to why he
  should not pay the tax/ dues unpaid or short paid as per the provisions of
  the scheme. The power to issue the notice under clause 8 is undoubtedly
  vested with the Commissioner and not in the Designated Authority. What
D is vested in the Designated Authority is the power under clause 4 of the
  Scheme which is the power to hear and decide applications and issue
  acknowledgments of discharge on due satisfaction. The said power to
  hear and decide applications, by no means, would include the power to
  reopen a decided matter which is what clause 8 specifically contemplates.
E The  Government order dated 30'h April, 2014 relied upon by the Revenue
  as a delegation of the power under clause 8, on a plain reading thereof,
  is only an empowerment of a particular Additional Commissioner of a
  particular Zone (a Zone may have several Additional Commissioners) to
  hear and decide applications filed under the Scheme. The said G.O
  dated 301h April, 2014 cannot be construed to be an exercise of delegation
F of powers vested. in the Commissioner under Clause 8 to Designated
  Authority. The plain language contained in the said G.O is capable of
  sustaining the above conclusion. We will, therefore, have to hold that the
  Additional Commissioner who had issued the show cause notice under
  clause 8 in the present case was not competent to do so and on that
G basis we affirm the conclusion of the I:Jigh Court on the said question.
            15. This will bring us to a consideration of the second issue arising
     in the case details of which have already been mentioned in preceding
     paragraphs of the present order.
        16. The declarations in the present case were issued to the
H assessee on 18'h February, 2014 and 28 1h February, 20 i4 respectively.
COMMISSIONER OF TRADE AND TAXES v. MIS AHLUWALIA                                      61
    CONTRACTS (INDIA) LTD. [RANJAN GOGOi, J.]

The show cause notice under Clause 8 was issued on I 6111 January, 2015.              A
The reply was submitted by the respondent-assessee on 27' 11 January,
2015. The adjudication was completed by the Order dated 11 111 February,
2015 against which the respondent-Assessee filed a writ petition before
the High Court on 4' 11 March, 2015. In the reply filed by the respondent-
Assessee to the show cause notice or in the proceedings pursuant thereto,
                                                                                      B
as already mentioned, no objection was taken by the assessee to the
power and jurisdiction of the Additional Commissioner to issue the notice
in question. The adjudication order, therefore, did not deal with the said
issue. It is only after the period of one year from the date of declaration
was over thatthe writ petition was filed wherein the question of jurisdiction
of the Additional Commissioner was raised for the first time. It is in                c
these facts that the High Court took the view that as the period of\ imitation
prescribed by Clause 8(3) was over, fresh proceedings stood barred by
time.
        17. While it is correct that the failure to raise the issue of jurisdiction
by the assessee will not necessarily clothe the Additional Commissioner               D
with the jurisdiction if the same is not contemplated by law, there are
certain aspects of the case which need to be considered. Had the assessee
raised the question of jurisdiction in its reply or in the course of the
adjudication proceedings there would have been still time for the
Commissioner to cure the defect and issue a valid notice. Cases under
Amnesty Scheme would fall outside the arena of ordinary and routine                   E
matters and, therefore, it is possible to attribute a genuine mistake on the
part of the Additional Commissioner in invoking jurisdiction under Clause
8 of the Amnesty Scheme. The question that looms large before the
Court is that whether in such a situation the assessee should be allowed
to raise the question of limitation and defeat the claim of the revenue to            F
proceed afresh in the matter on that basis.
         18. Dealing with a somewhat similar situation that arose before
this Court in Grindlays Bank Ltd. vs. Income Tax Officer, Calcutta and
Ors. 1 it was observed as follows in Para 7 "of the report in the following
manner.                                                                               G
          "7. The next point is whether the High Court possessed any
          power to make the order directing a fresh assessment. The
          principal relief sought in the writ petition was the quashing of the
          notice under Section 142(1) of the Income Tax Act, and inasmuch
1   (1980) 2 sec 191                                                                  H
62     SUPREME COURT REPORTS                          [2017) 10 S.C.R.


A     as the assessmentorder dated March 31, 1977 was made during
      the pendency of the proceeding consequent upon a purported
      non-compliance with that notice, it became necessary to obtain
      the quashing of the assessment order also. The character of an
      assessment proceeding, of which the impugned notice and the
      assessment order formed part, being quasi-judicial, the "certiorari"
B
      jurisdiction of the High Court under Article 226 was attracted.
      Ordinarily, where the High Court exercises such jurisdiction it
      merely quashes the ofknding order and the consequential legal
      effect is that but for the offending order the remaining part of
      the proceeding stands automatically revived before the inferior
c    ·court or tribunal with t~e need for fresh consideration and disposal
      by a fresh order. Ordinarily, the High Court does not substitute
      its own order for the order quashed by it. It is, of course, a
      different case where the adjudication by the High Court
      establishes a complete want of jurisdiction in the inferior court
      or tribunal to entertain or to take the proceeding at all. In that
D
      event on the quashing of the proceeding by the High Court there
       is no revival at all. But although in the former kind of case the
      High Court, after quashing the offending order, does not substitute
       its own order it has power nonetheless to pass such further orders
      as the justice of the case requires. When passing such orders
E     the High Court draws on its inherent power to mi1ke all such
       orders as are necessary for doing complete justice between the
       pari;~s. The interests of justice require that any undeserved or
       unfair advantage gained by a party invoking the jurisdiction of
       the court, by the mere circumstance that it has initiated a
       proceeding in the court, must be neutralised. The simple fact of
F
       the institution of litigation by itself should not be permitted to
       confer an advantage on the party responsible for it. The present
       case goes further. The appellant would not have enjoyed the
       advantage of the baroflin1itation if. notwithstanding his immediate
       grievance against the notice under Section 142( 1) of the Income
G      Tax Act, he had permitted the assessment proceeding to go on
       after registering his protest before the Income Tax Officer, and
       allowed an assessment order to be made in the normal course.
       In an application under Section 146 against the assessment order,
       it would have been open to him to urge that the notice was
       unreasonable and invalid and he was- prevented by sufficient
H
COMMISSIONER OF TRADE AND TAXES v. M/S AHLUWALIA                              63
    CONTRACTS (INDIA) LTD. [RANJAN GOGOI, J.]

       cause from complying with it and therefore the assessment order        A
       should be cancelled. In that event, the fresh assessment made
       under Section 146 would not be fettered by the bar of I imitation.
       Section 153(3)(!) removes the bar. But the appellant preferred
       the constitutional jurisdiction of the High Court under Article 226.
       If no order was made by the High Court directing a fresh               B
       assessment, he could contend as is the contention now before
       us, that a fresh assessment proceeding is barred by limitation.
       That is an advantage which the appellant seeks to derive by the
       mere circumstance of his filing a writ petition. It will be noted
       that the defect complained of by the appellant in the notice was
       a procedural lapse at best and one that could be readily corrected     C
       by serving an appropriate notice. It was not a defect affecting
       the fundamental jurisdiction of the Income Tax Officer to make
       the assessment. In our opinion, the High Court was plainly right
       in making the direction which it did. The observations of this
       Court in Director of Inspection of Income Tax (Investigation)          D
       New Delhi v. Pooran Mall & Sons 2 are relevant. It said:
         The Court in exercising its powers under Article 226 has to
         mould the remedy to suit the facts of a case. If in a particular
         case a court takes the view that the Income Tax Officer while
         passing an order under Section 132(5) did not give an adequate
         opportunity to the party concerned it should not be left with the    E
         only option of quashing it and putting the party at an advantage
         even though it may be satisfied that on the material before him
         the conclusion arrived at by the Income Tax Officer was correct
         or dismissing the petition because otherwise the party would
         get an unfair advantage. The power to quash an order under           F
         Article 226 can be exercised not me~ely when the order sought
         to be quashed is one made without jurisdiction in which case
         there can be no room for the same authority to be directed to
         deal with it. But in the circumstances of a case the court might
         take the view that another authority has the jurisdiction to deal
         with the matter and may direct that authority to deal with it or     G
         where the order of the authority which has the jurisdiction is
         vitiated by circumstances like failure to observe the principles
         of natural justice the court may quash the order and direct the
         authority to dispose of the matter afresh after giving the
------
' (1975) 4 sec 568                                                            H
64             SUPREME COURT REPORTS                           [2017] 10 S.C.R.


A              aggrieved party a reasonable opportunity of putting forward
               its case. Otherwise, it would mean that where a court quashes
               an.order because the principles of natural justice have not been
               complied with, it should not while passing that order permit the
               tribunal or the authority to deal with it again irrespective of the
               merits of the case.
B
             The point was considered by the Calcutta High Court in Cachar
             Plyi~1ood Ltd. v. TT0 3 and the High Court, after considering the
             provisions of Section 153 of the Income Tax Act, considered it
             appropriate. while deposing of the writ petition, to issue a direction
             to the Income Tax Officer to complete the assessment which,
c            but for the directioi< cf the High Court, would have been barred
             by limitation."
            19. Having considered the matt~r and the manner in which this
  Court has approached the issue arising in Grindiays Bank Ltd. (supra)
  we are of the view that Clause 8(3) of the Amnesty Scheme will have .
D no application to the present case where the initial show cause notice
  was issued within time and its legitimacy was not contested by the
  respondent-Assessee. Had such legitimacy been questioned at t!1e stage
  of reply or even in the course of the adjudication proceedings, there
  would still have been room/ time for the revenue to correct the error that
E had occurred. A rectified Notice could even have been issued after the
  order of adjudication was passed on l l'h February, 2015. The close
  proximity of time between the reply. submitted by the assessee to the
  Show Cause Notice (27.01.2015) and the proceedings in adjudication
  Revenue on the one hand and the date of filing of the Writ Petition
  (4.3.2015) would permit us to infer that the conduct of the assessee in
F raising the issue in the writ petitions and not earlier was not entirely
     bonafide. The respondent-Assessee, therefore, cannot he allowed
     to take advantage of its own wrong. The courts exercising
  extraordinary jurisdiction cannot be understood to be helpless but concede
  to the assessee an undeserved victory over the Revenue. The power of
G the High Court under Article 226 of the Constitution, wide and pervasive
  as it is, should have enabled the High Court to appropriately deal with
  the situation and issue consequential directions permitting initiation of
  fresh proceedings, if the Revenue was so inclined. The High Court having
  failed to so act, we now correct the error and issue directions to enable
H    ' (1978) 114 ITR 379 (Cal)
COMMISSIONER OF TRADE AND TAXES v. MIS AHLUWALIA                             65
    CONTRACTS (INDIA) LTD. [RANJAN GOGOI, J.]

the Revenue to issue a fresh notice to the assessee under clause 8 of the    A
Amnesty Scheme, if it so desires and is so advised.
       20. In the light of the foregoing, we allow these appeals in terms
of the directions as above and set aside the order of the High Court
impugned in the appeals.
                                                                             B

Nidhi Jain                                                Appeals allowed.