Cw/4340/2010 Of Krishi Upaj Mandi Samiti v. Commissioner Of Income Tax Anr

SB CIVIL WRIT PETITION NO.4340/2010Krishi Upaj Mandi Samiti (F & V) MuhanaSanganer, JaipurVersus. Commissioner of Income Tax (Appeals)-III,Jaipur and anr. DATE OF ORDER : 02/04/2010 HON'BLE MR. JUSTICE AJAY RASTOGI *** Mr. Rajendra Prasad , for petitioner. Instant writ petition has been filed against the order of assessment made by theAssessing Authority in exercise of powers under Section 201(1)/201(1A) of the Income TaxAct,1961 for the financial year in question.Earlier show cause notice for not deductingthe TDS under the provisions of Section 194C,194J and 194A for the respective financial yearwas served upon the petitioner and afteraffording opportunity of hearing and taking thematerial, which the petitioner placed on recordbefore the Assessing Authority, assessment wasmade by the Authority vide order dated11/02/2010. Since the order passed by theAssessing Authority is appealable before theCommissioner of Income Tax, indisputably appealhas been preferred by the petitioner and theapplication, which was filed for grant ofinterim relief under Section 220(3) of the Act,1961, was rejected by the Assessing Authorityvide order dated 18/03/2010. Counsel for petitioner has tried to draw attention of this Court towards the provisionswhich have been invoked by the Assessing Authority in holding that in absence of TDSbeing not deducted in the financial year inquestion, the petitioners are liable to pay thetax, is in contravention of the provisions ofthe Income Tax Act and has further tried toconvince this Court that Section 194C, 194J and194A of the Act, 1961 are not attracted in thefacts of the instant case. There may be some merit in what has beenurged by counsel for the petitioner but as theappeal has been preferred and the order ofAssessing Authority is subject to appeal whichhas already been preferred and the submissions,which have been made by counsel before thisCourt, are available for him to raise beforethe Appellate Authority before whom the appealsare pending and that being so, the AppellateAuthority will certainly examine the materialon record while taking its decision inexamining the merits of the assessment order,which is impugned but if any opinion isexpressed by the Court at this stage, it maycause prejudice to either of the parties. In view of the alternative remedy availableto the petitioner against the order ofassessment impugned in the instant writpetition, which has been availed by him, thisCourt is not inclined to exercise its extra-ordinary jurisdiction under Article 226 of theConstitution of India. Consequently, the writ petition fails and is hereby dismissed. However, looking to thenature of controversy being raised, it isexpected from the Appellate Authority to decidethe appeal expeditiously in accordance withlaw. , J. Raghu/p.3/ 4340-CW-2010-final.doc