Mahavir Spinning Mills Ltd., Ludhiana v. The Deputy Commissioner Of Income Tax,Special Range, Ludhiana And Another

Civil Writ Petition No.6076 of 1992 IN THE HIGH COURT OF PUNJAB AND HARYANA ATCHANDIGARH Civil Writ Petition No.6076 of 1992 Date of Order: 12.09.2013 Mahavir Spinning Mills Ltd., Ludhiana. ...Petitioner Versus The Deputy Commissioner of Income Tax,Special Range, Ludhiana and another. ..Respondents CORAM: HON'BLE MR. JUSTICE RAJIVE BHALLA HON'BLE MR. JUSTICE MEHINDER SINGH SULLAR Present: Mr. Aalok Mittal, Advocate for the petitioner.Mr. Rajesh Katoch, Advocate,for the respondents RAJIVE BHALLA, J (Oral) The petitioner, challenge vires of Section 143(1)(a) ofthe Income Tax Act, 1961 (hereinafter referred to as 'the Act'),order/intimation dated 24.01.1992, issued by the DeputyCommissioner of Income Tax and order dated 11.03.1992,passed under Section 154 of the Act, directing the petitioner todeposit Rs.65,17,964/- as further income tax and additionalincome tax under Section (1A) of Section 143 of the Act etc. Counsel for the petitioner submits that “additionalincome tax” and “further income tax” was demanded on accountof purchase and sale of units of the Unit Trust of India. The unitswere sold at a loss. The department construed this transaction as speculative by considering units as shares of a company. Itis further submitted that the issue in hand is covered byjudgment of the Hon'ble Supreme Court of India in ApolloTypres Ltd.v. Commissioner of Income Tax, (2002) 174 CTR(SC) 521and a judgment of this Court inSwaraj Mazda Ltd. &Anr.v. Deputy Commissioner of Income Tax & Anr. (1992)105 CTR(P&H) 109, the writ petition may be allowed. Counsel for the respondents submits that theappellant should be relegated to his alternative remedy, as nospecial reasons exist as would entitle the appellant to invokejurisdiction of this Court under Article 226 of the Constitution ofIndia. It is further submitted that even if it is accepted thatcontroversy is covered in favour of the appellant, it is for theappellant to raise such a plea before the appropriate forum, inaccordance with law. We have heard counsel for the parties. The petitioner has filed this writ petition, primarily tochallenge the vires of Section 143(1)(a) of the Act. Challengeto the assessment order was only incident. The vires of Section143(1)(a) of the Act have ,admittedly, been affirmed. Theappellant is, therefore, required to avail its alternative remedyagainst the assessment order, in accordance with law. Theappellant's plea that controversy in the present petition iscovered in its favour by the aforesaid judgments, can be validly -3- urged before the appropriate forum. Even otherwise,determination of the dispute would not merely depend uponthese judgments but would also require the authority concernedto appraise disputed questions of fact. In this view of the matter, we dispose of the petition byrelegating the petitioner to avail his alternative remedy. Delay, ifany, shall be considered sympathetically in view of pendency ofthe writ petition. (RAJIVE BHALLA) JUDGE September 12, 2013nt (MEHINDER SINGH SULLAR) JUDGE