K.2065, Kalikkanaickenpalayam Primaryagricultural Co-Operative Bank v. The Additional/Joint/Deputy/Assistant Commissioner Of Income Tax/Income Tax Officer, Income Tax Department,National E-Assessment Circle,Delhi

IN THE HIGH COURT OF JUDICATURE AT MADRASDATED : 08.03.2022 CORAM : THE HONOURABLE MR.JUSTICE R.SURESH KUMARW.P.NOS.5084 & 5086 OF 2022ANDW.M.P.NOS.5201, 5203, 5205 & 5206 OF 2022 K.2049, Periyanaickenpalayam PrimaryAgricultural Cooperative Credit Society Ltd.,Represented by its Secretary,N.Mohankumar, M/46,S/o.Natarajan,7/9, Railway Feeder Road,S R K V Post, Coimbatore – 641 020....Petitioner inW.P.No.5084 of 2022 K.2065, Kalikkanaickenpalayam PrimaryAgricultural Co-operative Bank,Represented by its Secretary,Sivaswamy S, M/58,S/o.Subramaniam,Maruthamalai Main Road,Vadavalli Post,Coimbatore – 641 041....Petitioner inW.P.No.5086 of 2022 Vs. The Additional/Joint/Deputy/Assistant Commissioner of Income Tax/Income Tax Officer, Income Tax Department,National e-Assessment Circle,Delhi....Respondent inW.P.No.5084 of 2022 The Income Tax Officer,Non Corporate Ward – 4(1),No.63-A, Race Course Road,Coimbatore – 641 018. ...Respondent inW.P.No.5086 of 2022 Common Prayer : Writ Petitions filed under Article 226 of theConstitution of India for issuance of a Writ of Certiorari,calling for the entire records relating to the impugned order passed by the respondent in its order No.ITBA/AST/S/143(3)/2021-22/1032361663(1), dated 12.04.2021 and order No.ITBA/AST/S/143(3)/2021-22/1036016996(1), dated 29.09.2021 quash the same. Since the issue raised in both the writ petitions is one andthe same, with the consent of the learned counsel appearing forboth sides, these writ petitions were heard together and arebeing disposed of by this common order. 2. The respective petitioner Cooperative Societies havemoved these writ petitions challenging the order of assessmentmade under Section 143(3) of the Income Tax Act, 1961 (in short,'the Act') by assessment orders dated 12.04.2021 and 29.09.2021for the Assessment Year 2018-19 and 2017-18. 3. Though these writ petitions have been filed challengingthe assessment orders as stated supra, the learned JuniorStanding Counsel appearing for the respondent/Revenue has raiseda preliminary objection that these writ petitions cannot beentertained because, there is an appeal provision availableunder the Act, hence invoking the same, appeal could be filedagainst the assessment orders. 4. When this was questioned, Mr.C.Prakasam, learned counselfor the petitioner would submit that, whenever such kind ofappeals are filed before the Appellate Authority, in most of thecases invariably the Appellate Authority insisted upon to makesuch payment of the demand even though such a pre-depositcondition to entertain the appeal is not available in the appealprovision under Section 246A of the Act. 5. After hearing these arguments advanced by the learnedcounsel appearing the petitioners, this Court feels that, merelybecause in the appeal before the Appellate Authority if theyinsist upon to make the payment of particular percentage of thedemand, which is the subject matter to be before the AppellateAuthority, that cannot be a ground to file a writ petitionbefore this Court assailing the order of assessment passed underSection 143(3) of the Act. 6. It is a settled position of law that, when there is astatutory appeal remedy available especially in tax legislation, https://hcservices.ecourts.gov.in/hcservices/ without exhausting the appeal remedy, writ petition would not beentertained by the High Courts except the circumstances, whereif there is a glaring violation of principles of natural justiceor for want of jurisdiction and if also various violation ofstatutory provisions. 7. In the absence of these three situations, no writpetition can be entertained by this Court as there has been aproper alternative effective appeal remedy available in thestatute. 6. It is a settled position of law that, when there is astatutory appeal remedy available especially in tax legislation, https://hcservices.ecourts.gov.in/hcservices/ without exhausting the appeal remedy, writ petition would not beentertained by the High Courts except the circumstances, whereif there is a glaring violation of principles of natural justiceor for want of jurisdiction and if also various violation ofstatutory provisions. 7. In the absence of these three situations, no writpetition can be entertained by this Court as there has been aproper alternative effective appeal remedy available in thestatute. 8. Moreover, under Section 246A of the Act, there is no pre-condition to be imposed that, the assessee when filed appealbefore the Appellate Authority to make the payment of aparticular percentage of the demand. Therefore, all appeals ifit is filed in time or if it is belatedly filed with condonedelay petition with plausible reason it would normally beentertained by the Appellate Authority without insisting anypayment as a pre-condition. 9. However, if the assessee goes before either the AssessingAuthority or the Appellate Authority to seek for a stay of thedemand, then, certainly some pre-condition would be imposedespecially in the context of Section 220(6) of the Act.Therefore, that need not be confused here by citing the reasonthat while filing the appeal under Section 246A, such pre-condition would be imposed by the Appellate Authority. 10. In that view of the matter, this Court is inclined todispose of these writ petitions with the following orders :●That the challenge made in these writ petitions cannot beentertained for the aforestated reasons, therefore, thewrit petitions are liable to be rejected, accordingly aredismissed. However, it is made clear that, it is open tothe petitioner to file appropriate appeal before the CIT(Appeals) with proper condone delay petition if there isa delay in filing the appeal and if such appeal withcondone delay petition is filed, the same shall beconsidered and decided on merits by the AppellateAuthority. ●It is further made clear that, if at all the petitionerwants to get a stay of the demand either by filing apetition under Section 220(6) of the Act before theAssessing Authority or before the Principal Commissioneror Appellate Authority, such authorities can decide thesame on merits and in accordance with law, where, if anypre-condition is imposed depending upon the circumstancesof the case, that has to be faced in the manner known tolaw by the petitioner/assessee. 11. With these observations and directions, both the WritPetitions are disposed of. No costs. Consequently, connectedmiscellaneous petitions are closed. Sd/- Assistant Registrar(CS-III) // True Copy // Sub Assistant Registrar sp/sglTo1.The Additional/Joint/Deputy/ Assistant Commissioner of Income Tax/ Income Tax Officer, Income Tax Department, National e-Assessment Circle, Delhi.2.The Income Tax Officer, Non Corporate Ward – 4(1), No.63-A, Race Course Road, Coimbatore – 641 018.+1cc to Mr.C.Prakasam, Advocate Sr.No.15969+2ccs to Mr.A.P.Srinivas, Advocate Sr.No.16332 W.P.Nos.5084 & 5086 of 2022 GPL(CO)RVM(13/06/2022)