Its v. The Income Tax Officerward I(1), Pondicherry

IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED: 13.03.2007 THE HONOURABLE MR.JUSTICE P.D.DINAKARAN andTHE HONOURABLE MRS.JUSTICE CHITRA VENKATARAMAN W.A.Nos.380 and 381 of 2006 M/s.Nova Films & Paper Manufacturing CompanyB-67, Industrial EstateSedarapetPondicherry-604 011, rep. By its Partner, Mr.Sanjeev Arora .. Appellant in both appeals/Petitioner versus The Income Tax OfficerWard I(1), Pondicherry. ..Respondent in both appeals/Respondent PRAYER: W.A.Nos.380 and 381 of 2006 are filed under Clause 15 of theLetters Patent against the order of a learned single Judge of this Courtdated 20.3.2006 in W.P.Nos.7676 and 7677 of 2006 writ of certioraricalling for the records of the respondent in his proceedings inG.I.R.PAN.4380/ dated 14.02.2006 for the Assessment year 2002-2003, 2001-2002 respectively and quashing the same. (Judgment of the Court was delivered by CHITRA VENKATARAMAN,J.) These writ appeals are against the order of the learned single Judgein W.P.Nos.7676 and 7677 of 2006 dated 20.3.2006, wherein, the appellantherein challenged the orders of assessment for the assessment years 2002-03 and 2001-02 respectively. Learned single Judge, referring to thedecision reported in (2005) 2 MLJ 246 (M/S.NIVARAM PHARMA PRIVATE LIMITEDVs. THE CUSTOMS, EXCISE AND GOLD (CONTROL) APPELLATE TRIBUNAL, SOUTH https://hcservices.ecourts.gov.in/hcservices/ REGIONAL BRANCH AND OTHERS), dismissed the writ petitions on the ground ofavailability of alternative remedy. Aggrieved of this, the assessee/writpetitioner has preferred these writ appeals, contending that when theproceedings taken were totally without jurisdiction, such a jurisdictionalerror could be corrected under Article 226 of the Constitution of India. 2. Learned senior counsel appearing for the appellant submitted thatalthough an effective alternative remedy by way of an appeal is available,yet, an appellate authority under the Act was most likely to follow thejudgment relied on by the assessing authority for the purpose of passingthe assessment. This would be to the detriment of the appellant, since,according to the counsel, the same was not applicable to its case. Hesubmitted that the assessee's case was directly covered by the decision ofthe High Court and the Supreme Court and that they did not requireinvestigation of complicated facts. 3. We do not agree with the contention put forth, as stated above. Aperusal of the order and the other materials enclosed in the paper bookclearly show that the claim of the assessee requires investigation intothe facts that, in any event, when it could not be denied that the appealremedy is an effective and efficacious remedy, on the mere allegation thatthe appellate authority may follow the decision relied on by the assessingauthority, is no ground for invoking the jurisdiction under Article 226 ofthe Constitution of India. In the circumstances, we do not find any meritin the submission of the learned senior counsel to interfere with theorders of assessment. 4. In this connection, we refer to the decision of a Division Benchof this Court reported in 279 ITR 342 (DR.K.NEDUNCHEZHIAN Vs. DEPUTY CIT),wherein, the Division Bench affirmed the decision reported in 274 ITR 37(DR.K.NEDUNCHEZHIAN Vs. DEPUTY CIT), and following the decision of theApex Court, held that when there is an alternative remedy, ordinarily,writ jurisdiction under Article 226 of the Constitution of India shouldnot be invoked and that the principle applies with greater force to thisproceedings. 5. It is stated by the learned senior counsel for the assessee thatthey had already invoked the appellate jurisdiction. 4. In this connection, we refer to the decision of a Division Benchof this Court reported in 279 ITR 342 (DR.K.NEDUNCHEZHIAN Vs. DEPUTY CIT),wherein, the Division Bench affirmed the decision reported in 274 ITR 37(DR.K.NEDUNCHEZHIAN Vs. DEPUTY CIT), and following the decision of theApex Court, held that when there is an alternative remedy, ordinarily,writ jurisdiction under Article 226 of the Constitution of India shouldnot be invoked and that the principle applies with greater force to thisproceedings. 5. It is stated by the learned senior counsel for the assessee thatthey had already invoked the appellate jurisdiction. 6. The appellant had preferred petitions for modification of theorder passed by us on 27.2.2007 in this appeal, praying that the directionas to the payment of interest at 50% may not be insisted upon. Theappellant has filed the petitions in W.A.M.P.Nos.83 and 84 of 2007 and hadstated that they had paid a sum of Rs.1 crore. In the circumstances, theyhave prayed for modification, to permit the appellant to pay the balanceof tax referred to in the order dated 27.2.2007 within a period of fourweeks from 13.3.2007 and waive the payment of interest, as contained inthe order. 7. Considering the fact that the assessee had paid Rs.1 crore and hadexpressed its financial difficulty, we modify the order to the extent thatthe direction to pay 50% of the interest payable, shall stand deleted. Itis hereby made clear that the interest payable, as computed in the orderof the Assessing Officer, will however be subject to the result in theappeal preferred by the petitioner. The writ appeals are dismissed.Accordingly, W.A.M.P.Nos.83 and 84 of 2007 are ordered and W.A.M.P.Nos.808and 809 of 2006 are closed. Sd/Asst.Registrar/true copy/Sub Asst.RegistrarksvTo: The Income Tax OfficerWard I(1), Pondicherry.2 cc To Mrs.Anita Sumanth, Advocate, SR.15395.1 cc To Mr.Pushya Sitaraman, Advocate, SR.15670.NSM(CO)RVL 29.03.2007 W.A.Nos.380 and 381 of 2006