W.a v. Nachiappan

IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED : 20.9.2007 CORAM THE HONOURABLE MR. JUSTICE K.RAVIRAJA PANDIANAND THE HONOURABLE MRS. JUSTICE CHITRA VENKATARAMAN W.A.No.2664 of 2001 V. Nachiappan .. Appellantversus Income Tax OfficerWard-I (3)Karaikudi – 630 002... Respondent Writ Appeal filed under clause 15 of Letters Patent (AppellateJurisdiction) against the order dated 26.7.2001 in W.P.No.13548 of2001. This petition presented to this Court under Article 226 ofconstitution of India to issue a writ of Certiorari calling for therecords in the matter of Income Tax Assessment of the petitioner inthe capacity of Legal heir of his fathers estate in the proceedingsof the respondent in file No.47-042-HN-4807 (3213-V/91-92) for theassessment year 1991-92 including the order passed therein dated01.03.2001 and quash the said order. For Appellant : Mr. R. SrinivasanJ U D G M E N T (Judgment of the Court was delivered by Chitra Venkataraman,J.) The writ appeal is filed against the order of the learnedsingle Judge dated 26.7.2001 dismissing the writ petition on theground of availability of alternative remedy. The appellant hereinpreferred a writ petition challenging the order of re-assessmentpassed under Section 147 of the Income Tax Act, 1961, (hereinafterreferred to as the `Act') on the ground that when there is nowhisper in the notice as to any non-disclosure of primary facts,the assumption of jurisdiction itself is not called for underSection 147. Hence, for want of jurisdiction on the part of theAssessing Officer, the proceedings are unsustainable. 2. The learned single Judge, in his order dated 26.7.2001,pointed out that admittedly, the appellant had the right of an https://hcservices.ecourts.gov.in/hcservices/ appeal provided for under the Act; that the decisions of the ApexCourt reported in AIR 1970 SC 645 (CHAMPALAL BINANI Vs. COMMISSIONEROF INCOME TAX) and AIR 1983 SC 603 (TITAGHUR PAPER MILLS CO. LTD.Vs. STATE OF ORISSA) clearly held that "when there is a hierarchy ofauthorities for getting adequate relief, the Writ Petition underArticle 226 of the Constitution cannot be entertained. LearnedJudge further pointed out that the the real grievance of theassessee, as per the submission of the counsel, was that he wouldnot get an interim order of stay of recovery from the appellateauthority. Therefore, he had moved this Court. The learned singleJudge rejected the plea of the assessee that it could not be groundfor invoking the jurisdiction of this Court under Article 226 of theConstitution of India to maintain the writ petition. Thusdismissing the writ petition, learned single Judge gave liberty tothe petitioner/appellant herein to move the authority with anapplication for interim stay, which would be considered on merits. 3. As against this order in the writ petition, the presentwrit appeal is preferred contending that when there is a lack ofjurisdiction, the invoking of jurisdiction under Article 226 of theConstitution of India is well maintainable and the stand of theappellant could not be faulted with. We do not agree with thesubmission of the learned counsel for the appellant. 3. As against this order in the writ petition, the presentwrit appeal is preferred contending that when there is a lack ofjurisdiction, the invoking of jurisdiction under Article 226 of theConstitution of India is well maintainable and the stand of theappellant could not be faulted with. We do not agree with thesubmission of the learned counsel for the appellant. 4. While considering a similar plea on invoking thejurisdiction of the Court under Article 226, when the statutoryremedies were available in the decision reported in 279 ITR 342(DR.K.NEDUNCHEZHIAN Vs. THE DEPUTY COMMISSIONER OF INCOME TAX ANDTHE COMMISSIONER OF INCOME TAX), a Division Bench of this Courtheld that when the statute provides for a hierarchy of appeals, theaggrieved party must exhaust the statutory remedies and not toresort to the constitutional remedy under Article 226. This Courtfurther held that it will be a sound exercise of discretion torefuse to interfere in a petition under Article 226 of theConstitution unless there are good grounds to do otherwise. Again,in the decision reported in 2005 (1) CTC 1 (INDIAN ADDITIVES LTD.EXPRESS HIGHWAY, CHENNAI Vs. INDIAN ADDITIVES EMPLOYEES UNION), thisCourt reiterated the said proposition of law. Referring to thereliance placed on the decision of the Supreme Court reported in(1998) 8 SCC 1 (WHIRLPOOL CORPORATION Vs. REGISTRAR OF TRADE MARKS),this Court held:" No doubt, it is well-settled that alternativeremedy is not an absolute bar a writ petitionbut it is equally well-settled that ordinarilyif there is an alternative remedy, thediscretion under Article 226 should not beexercised and the party should be relegated toavail the alternative remedy. Hence, even if there is violation of any of the FundamentalRights or of natural justice or the proceedingsare without jurisdiction, the High Court underArticle 226, on the facts of the particularcase, can still dismiss the writ petition onthe ground of availability of alternativeremedy and ordinarily it should do so if thereis an alternative remedy. " The Division Bench followed the Supreme Court decisions reported inAIR 1995 SC 1715 (RAJASTHAN STATE ROAD TRANSPORT CORPORATION Vs.KRISHNA KANT), (2004) 4 SCC 268 (U.P.STATE BRIDGE CORPORATION LTD.Vs. U.P. RAJYA SETU NIGAM S.KARAMCHARI SANGH) and (1998) 8 SCC 1(WHIRLPOOL CORPORATION Vs. REGISTRAR OF TRADE MARKS). 5. On the above-said settled principles of law, we do notfind there exists any extraordinary circumstance warrantinginterference under Article 226. We also do not find anyjustification to accept the submission by the learned counsel forthe appellant that on account of want of jurisdiction, the orderpassed by the Assessing Authority has to be set aside and that theassessee need not be driven to the statutory remedies and that whenthe issue raised goes to the very root of the matter, this Courtcan deal with the same . It is not denied by the learned counselthat the contention raised herein as to the jurisdiction can equallyeffectively be raised before the appellate authority who has everyjurisdiction under the Act to consider the same and pass orders. 6. Taking note of the submission made by the learnedcounsel for the appellant, in the face of the law declared by thisCourt following the Apex Court decision, we do not find any groundto accept the plea of the appellant to interfere in this matter.Consequently, the writ appeal is dismissed with a direction that onpayment of 50% of the tax demanded, which includes surcharge at12%, within a period of three weeks from the date of receipt of acopy of this order, the appellant will be entitled to file an appealwithin two weeks thereafter. If and when such an appeal is filed,the same shall be entertained and shall be disposed of within theperiod of limitation. kb To: The Income Tax OfficerWard-I (3)Karaikudi – 630 002. +1cc to Mr.S.Pushya Sitaraman for Senior Counsel Sr 58702 6. Taking note of the submission made by the learnedcounsel for the appellant, in the face of the law declared by thisCourt following the Apex Court decision, we do not find any groundto accept the plea of the appellant to interfere in this matter.Consequently, the writ appeal is dismissed with a direction that onpayment of 50% of the tax demanded, which includes surcharge at12%, within a period of three weeks from the date of receipt of acopy of this order, the appellant will be entitled to file an appealwithin two weeks thereafter. If and when such an appeal is filed,the same shall be entertained and shall be disposed of within theperiod of limitation. kb To: The Income Tax OfficerWard-I (3)Karaikudi – 630 002. +1cc to Mr.S.Pushya Sitaraman for Senior Counsel Sr 58702 +1cc to Mr.R.Srinivasan, Advocate Sr 58701 AKR (CO)km/26.10. W.A.No.2664 of 2001