And Kashmir v. R.k.zalpuri And Others Reported In

1 IN THE HIGH COURT OF KARNATAKA AT BENGALURU| DAITBD THIS THE 1 DAY OF SEPTEMBER, 2019 BEKORE, THR HON’BLE MR. JUSTICE P.B. BAJANTHRI .WRIT PETITION No.30146/2019 (TIT) BETWEEN: Bajpe Airport Tourist and TaxiDrivers’-Owners’ MultipurposeCo-op. Society Ltd.,3-498(13), Nycon’s Town,Thare Kambla, Suralpady,Bajpe, Mangaluru. (D.K. District) -— 5974 142Represented by its C.E.O. —|Mr.Tharanatha. |...Petitioner. (By Sri. Mahesh R Uppin, Advocate) AND: 1.Dy. Commissioner of Income Tax, Centralized Processing Centre, Bengaluru — 560 500. 2Income Tax Officer, Ward — 2(4), Aayakar Bhavan, Attavara,Mangaluru — 975 OO1.... RespondentsAayakar Bhavan, Attavara,Mangaluru — 975 OO1.... Respondents (By Sri. Jeevan R Neeralgi, Advocate a/wsri. E.I.Sanmathi, Advocate)sri. E.I.Sanmathi, Advocate) This Writ Petition is filed under Articles 226 and22/ of the Constitution of India praying to quash the|order dated 12.02.2019 marked as Annexure — B and|the order dated 31.05.2019 marked as Annexure — C|both the orders passed by the R-1 and etc., This Writ Petition coming on for PreliminaryHearing in ‘B’ group, this day, the Court made the|following:| ORDER The petitioner has sought for following reliefs:- (y)Quash the Order dated 12.02.2019 bearingNo.CPC/ 1819/ G22/ 18749463markedNo.CPC/ 1819/ G22/ 18749463marked as Annexure “B” and the order dated|31.05.2019.bearingNo.CPC/ 1819/ A5/ 1874946328 marked Annexure “C” both the orders passed byrespondent No.1, by issuing a writ in thenature of Certiorart;31.05.2019.bearingNo.CPC/ 1819/ A5/ 1874946328 marked Annexure “C” both the orders passed byrespondent No.1, by issuing a writ in thenature of Certiorart; (it)Issue writ in the nature of mandamusdirecting for fresh assessment of_ the[.T.Return filed by the petitioner in respectof A.Y.2018-19 marked Annexure-A, by|respondent No.2 in accordance with law|and to complete the assessment within aiperiod of two months; and|directing for fresh assessment of_ the[.T.Return filed by the petitioner in respectof A.Y.2018-19 marked Annexure-A, by|respondent No.2 in accordance with law|and to complete the assessment within aiperiod of two months; and| (itt)Grant such other relief as may be deemedfit to grant under the circumstances of the.case in the interest of equity and justice.” 2. Undisputedly petitioner has statutory remedyunder Section 246 of Income Act, 1961 (for short ‘the|Act). | 3. The learned counsel for the _ petitionersubmitted that petitioner need not exhaust the remedy|of appeal in event of non compliance of Section 143 (1)of the Act. Whereas, time and again Courts have held|that writ could be entertained if any order is passed|without authority of law. As is evident from the|statutory provision, Section 246 of the Act, which|provides for appeal against the impugned order, the|Hon’ble Supreme Court in the case of|State of Jammu and Kashmir vs. R.K.Zalpuri and others reported in AIR 2016 SC 3006, has held as under:- “20. Having stated thus, it is useful to refer|To.aPassagefromCityandIndustrial Development Corporation v. Dosu AardeshirBhtwandiwala and Others, wherein this Courtwhile dwelling upon jurisdiction under Article 226 of the Constitution, has expressed thus:-| 6. (2009) 1 SCC 168: (AIR 2009 SC 571). “The Court while exercising its Jurisdiction|under Article 226 is duty-bound to considerwhether:whether: (a)adjudication of writ petition involves any complexand disputed questions offacts and whether theycan be satisfactorily resolved;and disputed questions offacts and whether theycan be satisfactorily resolved; (b)the petition reveals all material facts;| (c)the petitioner has any alternative or effectiveremedy for the resolution of the dispute;remedy for the resolution of the dispute; (d)person invoking the jurisdiction is guilty ofunexplained delay and laches;unexplained delay and laches; (e}ex facie barred by any laws of limitation;| of the Constitution, has expressed thus:-| 6. (2009) 1 SCC 168: (AIR 2009 SC 571). “The Court while exercising its Jurisdiction|under Article 226 is duty-bound to considerwhether:whether: (a)adjudication of writ petition involves any complexand disputed questions offacts and whether theycan be satisfactorily resolved;and disputed questions offacts and whether theycan be satisfactorily resolved; (b)the petition reveals all material facts;| (c)the petitioner has any alternative or effectiveremedy for the resolution of the dispute;remedy for the resolution of the dispute; (d)person invoking the jurisdiction is guilty ofunexplained delay and laches;unexplained delay and laches; (e}ex facie barred by any laws of limitation;| (f)grant of relief is against public policy or barred byany valid law; and host of otherfactors.”any valid law; and host of otherfactors.” 4. In view of the principle laid down by the Hon’ble Supreme Court, petitioner has alternativeremedy before the appropriate forum. Therefore, writ)petition is disposed of reserving liberty to the petitioner| to file an appeal before the Appellate Authority. If there)is any delay, in such an event, petitioner is permitted to.make necessary application for condonation of delay in|memorandum of appeal to the Appellate Authority and)the Appellate Authority is directed to consider the delay|application. | Sd/-.JUDGE MH/-