Autolite (India) Ltd v. The Commissioner Of Income Tax & Anr. Date Of Order : 26/04/2016

IN THE HIGH COURT OF JUDICATURE FOR RAJASTHANAT JAIPUR BENCH JAIPUR D.B. Civil Special Appeal (Writ) No.411/2002 In S.B. Civil Writ Petition No.2566/2002 Autolite (India) Ltd., Versus The Commissioner of Income Tax & Anr. DATE OF ORDER : 26/04/2016 HON'BLE MR. JUSTICE M.N. BHANDARIHON'BLE MR. JUSTICE J.K. RANKA Mr. Vivek Singhal, for appellant Mr. R.B. Mathur, for non-appellants By this special appeal, a challenge is made to the orderdated 22[nd] April, 2002 passed in the writ petition preferred bythe appellant. The writ petition was filed to challenge thenotice dated 20[th] March, 2002 issued under Section 148 of theIncome Tax Act, 1961 (in short “the Act of 1961”). Learned counsel for appellant submits that a noticeissued under Section 148 of the Act of 1961 was barred bylimitation thus should have been interfered by the learnedSingle Judge by exercising his jurisdiction under Article 226 ofthe Constitution of India. It is not necessary that due toavailability of efficacious alternative remedy, the appellantshould be relegated to exhaust it. The present is case ofexceptional nature. The Division Bench while setting aside the order of the learned Single Judge, may quash the notice issuedunder Section 148 of the Act of 1961, being time barred. Learned counsel for non-appellants has opposed theappeal. He submits that on issuance of notice under Section148 of the Act of 1961, the appellant was having opportunity toraise objections available to him. The appellant instead ofraising objections to the notice before the competent authority,filed the writ petition. Learned Single Judge refused to exercisehis extraordinary jurisdiction due to availability of efficaciousalternative remedy. It is not necessary that even if thealternative remedy exists, the writ petition should beentertained. It is discretionary jurisdiction of the court. Oncethe court exercising jurisdiction under Article 226 of theConstitution of India has refused to entertain the writ petitionin view of availability of alternative remedy, this court may notcause interference in the impugned order of the learned SingleJudge. A reference of judgment of the Apex Court in the case of GKN Driveshafts (India) Ltd. Vs. Income-Tax Officer andOrs., reported in (2003) 259 ITR 19 has been given. Therein,challenge to the notice by way of writ petition was notaccepted. The assessee is having remedy before the authorityconcerned. It should have raised objections to the notice on allthe available grounds. We have considered the rival submissions of the partiesand perused the record. On a notice under Section 148 of the Act of 1961,challenge was made to it by way of writ petition. It wasdismissed in view of availability of alternate remedies. Theappellant has challenged the order of the learned Single Judgeso as notice under Section 148 of the Act of 1961. It is alleged to be time barred and due to lack ofjurisdiction for issuance of notice under Section 148 of the Actof 1961. The objections pertaining to limitation as well asjurisdiction can very well be raised before the authority inresponse to the notice issued under Section 148 of the Act of1961. We do not find it to be a case of exceptional naturewhere learned Single Judge should have interfered in theimpugned notice. Learned Single Judge within his jurisdictionrefused to entertain the writ petition and thereby the appellantis relegated to exhaust the remedy before the competentauthority. The judgment of the Apex Court in the case of GKNDriveshafts (India) Ltd. (supra) supports the argument of thelearned counsel for non-appellants. In view of above, we do notfind any illegality in the order passed by the learned SingleJudge. The special appeal against the said order is dismissed. Itis however with liberty to the appellant to submit objections tothe notice before the authority who issued the notice underSection 148 of the Act of 1961. In case of objections, theauthority would decide it without pre-conceived notion and inaccordance with law. [J.K. RANKA],J. [M.N. BHANDARI], J. FRBOHRA Certificate: “All corrections made in the judgment/order have been incorporated in the judgment/orderbeing emailed.” Fateh Raj Bohra, Private Secretary