Prithvi Raj Singh v. The Commissioner Of Income Tax,Jaipur & Ors

1 IN THE HIGH COURT OF JUDICATURE FOR RAJASTHANBENCH AT JAIPUR. D.B. Civil Special Appeal (W) No.415/2016 Prithvi Raj Singh Vs. The Commissioner of Income Tax,Jaipur & ors. DATE OF ORDER ::: 07[th] November, 2016 HON'BLE MR. JUSTICE K.S. JHAVERIHON'BLE MR. JUSTICE GOVERDHAN BARDHAR Mr. A.K. Bhandari, Sr. Counsel withMr. Samit Bishnoi, for the appellant. BY THE COURT:- (Per Hon'ble Jhaveri, J.) 1.By way of this appeal, the appellant has assailed thejudgment and order of the learned Single Judge wherebylearned Single Judge has dismissed the petition preferred bythe appellant. 2.The appellant has challenged the order dated19/9/2011 passed by the Sub Registrar, Beawar, DistrictAjmer, and the order dated 31st March, 2015 passed by theAssessing Officer. The appellant has also challenged thedemand notice dated 31st August, 2015 issued by theIncome Tax Officer, Ward No.1, Kishangarh. The contentionof the appellant is that the stamp authority has valued theproperty behind back of the appellant and the appellant isadversely affected by the order of the stamp authority andassessed higher under the Income Tax Act. Counsel for the appellant further contended that the appellant is remedylessand he has no other option but to file the writ petition. 3.Learned Single Judge while considering the case of the appellant had observed as under:- “4.Having regard to the submissions made bythe learned counsels for the parties, and to thedocuments on record as also the provisions of theRajasthan Stamp Act as well as of the Income TaxAct, it appears that admittedly, the petitioner haschallenged the impugned order dated 31/3/2015passed by the Assessing Officer, before theCIT(Appeals). Hence in view of the decision of theSupreme Court in case of CIT vs. Chhabil DassAgarwal relied upon by Ms. Parinitoo Jain, thepresent petition under Article 226 would not bemaintainable in the eye of law. It is held therein asunder :- “Before discussing the fact proposition, we wouldnotice the principle of law as laid down by thisCourt. It is settled law that non-entertainment ofpetitions under writ jurisdiction by the High Courtwhen an efficacious alternative remedy is availableis a rule of self-imposed limitation. It is essentiallya rule of policy, convenience and discretion ratherthan a rule of law. Undoubtedly, it is within thediscretion of the High Court to grant relief underArticle 226 despite the existence of an alternativeremedy. However, the High Court must notinterfere if there is an adequate efficaciousalternative remedy available to the petitioner andhe has approached the High Court without availingthe same unless he has made out an exceptionalcase warranting such interference or there existsufficient grounds to invoke the extraordinaryjurisdiction underArticle 226. (See: State of U.P. vs.Mohammad Nooh, AIR 1958 SC 86; Titaghur PaperMills Co. Ltd. vs. State of Orissa, (1983) 2 SCC433; Harbanslal Sahnia vs. Indian Oil Corpn. Ltd.,(2003) 2 SCC 107; State of H.P. vs. GujaratAmbuja Cement Ltd., (2005) 6 SCC 499).” 5.In view of the above stated legal position, thepetitioner having already approached the AppellateAuthority and availed of the alternative remedy,this petition under Article 226 of the Constitution isnot maintainable. The submission made by thelearned counsel Ms. Parinitoo Jain for the 5.In view of the above stated legal position, thepetitioner having already approached the AppellateAuthority and availed of the alternative remedy,this petition under Article 226 of the Constitution isnot maintainable. The submission made by thelearned counsel Ms. Parinitoo Jain for the respondents that the petitioner having not madeany application before the Appellate Authorityseeking stay against the execution of and theorder passed by the Assessing Officer, the demandnotice dated 31/8/2015 was issued by theconcerned Income Tax Officer has also not beendisputed by the learned counsel for the petitioner.It is also pointed out by the learned counsels forthe respondents that in the grounds of appeal, thepetitioner has already objected against thedetermination of sale consideration to beRs.8,91,48,410/- instead of Rs.6,06,91,845/-. Thatbeing the subject matter pending before theAppellate Authority, the Court restrains itself fromexpressing any opinion on such valuation. It isneedless to say that the Appellate Authority shalldecide the said appeal in accordance with law. 6.So far as the impugned order dated19/9/2011 is concerned, apart from the fact thatthe same is sought to be challenged after fouryears by the petitioner, it is pertinent to note thatthe said order was passed when the seller ShriPrithvi Raj Singh, who was the husband of thepetitioner and also one of the partners of thepurchaser firm was alive. Thereafter the saidpurchaser firm had complied with the said orderpassed by the Sub Registrar, crystalling the liabilityof the purchaser firm. It is therefore not open forthe petitioner to challenge the said order by way ofpresent petition, more so when the petitioner haschallenged the assessment made by the Assessingofficer on the basis of the said order of the StampAuthority, before the CIT(Appeals). Though it issought to be submitted by the learned SeniorCounsel Mr.Abhey Bhandari for the petitioner thatthe petitioner was not aware about the deposit ofdeficit stamp duty made by the purchaser firm, it isdifficult to accept the said submission. When thesaid late Shri Prithvi Raj Singh was alive at therelevant time, and subsequently when the deed ofretirement was also executed on 12/12/2011 bythe legal heirs of Shri Prithvi Raj Singh, it is toolate in the light of the day for the petitioner tochallenge the said order passed by the SubRegistrar as back as in the year 2011.” 4.In our view, under the Stamp Duty Act, the assessingofficer is required to make the deficiency in payment good which has adverse affect in whatsoever manner, therefore,order under the Stamp Duty Act could not have beendisturbed by the learned Single Judge and the same hasrightly been done by the learned Single Judge. Order of theyear 2011 was challenged after 4 years which cannot bedisturbed. 5.We are in complete agreement with the view taken bythe learned Single Judge. The order passed by the theIncome Tax Authority is a consequential order against whichthe appellant has remedy before the CIT(A). 6.The appeal as well as stay application stand dismissed. (Goverdhan Bardhar), J. (K.S. Jhaveri), J. Brijesh12.