Wp/1896/2019 Of M/S.marina Ship Brokers v. Income Tax Officer

IN THE HIGH COURT OF JUDICATURE AT MADRAS Dated : 19-08-2019 Coram M/s.Marina Ship Brokers,No.106, 48/39:Wavoo Mansion:Rajaji Salai,Parrys,Chennai-600 001 Represented byPartner B.Gopi..Petitioner Income Tax Officer,Non-Corporate Ward 11(2),2[nd] Floor, Room No.203,BSNL Building, Tower II,No.16, Greams Road,Chennai-600 006... Respondent PRAYER : Writ Petition filed under Article 226 of theConstitution of India praying for issuance of a Writ ofCertiorari, calling for the records leading to the issue of theorder of assessment for the year 2013-14 dated 29.11.2018 issuedby the respondent against the petitioner and quash the same asillegal, arbitrary and devoid of merit. Senior Standing Counsel (Income-tax). Mr.Sandeep Bagmar R.,learned counsel representinglearned counsel on record for writ petitioner andMr.J.Narayanaswamy, learned Senior Standing Counsel (Income Tax)on behalf of sole respondent, are before this Court. 2. With consent of learned counsel on both sides, mainwrit petition is taken up, heard out and is being disposed of. 3. An assessment order dated 29.11.2018 made by solerespondent qua writ petitioner assessee for the assessment year2013-2014 (hereinafter 'said AY' for brevity) has been called inquestion in the instant writ petition and this 'assessment ordermade by the sole respondent, being assessment order dated29.11.2018', shall hereinafter be referred to as 'impugnedorder' for the sake of brevity, convenience and clarity. 4. Impugned order has been made under Section 143 (3) ofthe Income Tax Act, 1961 ('IT Act' for brevity), pursuant toorder of remand made by the 'Income Tax Appellate Tribunal',Chennai ('ITAT' for brevity) vide order dated 27.09.2017 in astatutory Income Tax Appeal being ITA No.1956/Mds/2017. To benoted, this statutory appeal before ITAT is under Section 254 ofIT Act and therefore, for all practical purposes impugned orderhas been made under Section 143(3) of IT Act read with Section254 of IT Act. 5. Short facts shorn of micro details/particulars arethat the writ petitioner assessee made two donations in said AY.One is Rs.20 lakhs in favour of one 'Herbicure Healthcare Bio-Herbal Research Foundation' (hereinafter 'Herbicure Foundation'for brevity) and another is Rs.3 lakhs in favour of 'School ofHuman Genetics and Population Health' (hereinafter 'GeneticsSchool' for brevity). 6. According to writ petitioner assessee, these twodonations are eligible for exemption under Section 35(1)(ii) ofIT Act. However, vide an order of assessment dated 29.3.2016,these two donations were held to be not eligible forexemption/deduction and 175% of the donations were added back tothe income of the assessee. 7. To be noted, vide this assessment order dated29.03.2016, expenses claimed by the writ petitioner assesseeunder one more head, i.e., business promotion expenses to thetune of little over Rs.13 lakhs (Rs.13,14,362/- to be precise)was disallowed, but this was given quietus by writ petitionerassessee and is not before this Court now. 8. With regard to aforementioned two donations andeligibility under Section 35(1)(ii) of IT Act, writ petitionerassessee carried the matter in appeal by way of a regularstatutory appeal under IT Act to the Commissioner of Income TaxAppeals, who vide order dated 04.05.2017 dismissed the appealconfirming the assessment order made by the Assessing Officer.Writ petitioner carried this matter further to ITAT by way of a further statutory appeal under Section 254 of IT Act (asmentioned supra) and the ITAT, vide aforementioned order dated27.09.2017 set aside the order of the Assessing Officer as wellas the order of the Commissioner of Income Tax Appeals andremitted the matter back to the Assessing Officer with certaindirections. The crux and gravamen of the remittal order passedby ITAT is contained/articulated in paragraphs 6 to 8 of theorder of ITAT and the same read as follows: further statutory appeal under Section 254 of IT Act (asmentioned supra) and the ITAT, vide aforementioned order dated27.09.2017 set aside the order of the Assessing Officer as wellas the order of the Commissioner of Income Tax Appeals andremitted the matter back to the Assessing Officer with certaindirections. The crux and gravamen of the remittal order passedby ITAT is contained/articulated in paragraphs 6 to 8 of theorder of ITAT and the same read as follows: '6. We have considered the rivalsubmissions on either side and perused therelevant material available on record. Fromthe orders of the lower authorities it appearsthat out of Rs.40 lakhs of net profit, Rs.23lakhs was donated to two institutions atKolkata for the purpose of claiming deductionunder Section 35(1)(ii) of the Act. On thebasis of the survey conducted by the RevenueAuthorities in the premises of the above saidtwo research institutions at Kolkata, it wasfound that the said institutions wereproviding accommodation entries by receivingbogus donation. One of the Directors who wasexamined, categorically admitted that thedonations were received from various personsacross the country and after receiving smallamounts of cash at 3% in the initial year to8% in the later years, the balance amount wasreturned back to the companies/persons who areidentified by the donors. Some of the fundsalso appear to have been refunded to thedonors through banking channel. From the orderof the Assessing Officer it appears that oneof the institutions, namely, School of HumanGenetics and Population Health moved theSettlement Commission and admitted that theyhave provided accommodation entries in respectof bogus donations received by them.Similarly, the Director of HerbicureHealthcare Bio Herbal Research Foundation hasalso admitted to have given accommodationentries after receiving commission. TheAssessing Officer after reproducing thestatement recorded from the respectivepersons, has concluded that the claim ofdonation more than 50% of profit was far-fetched one. 7. Now the issue before this Tribunal iswhether the assessee is entitled to receivecopy of statement and other material whichwere relied upon by the Assessing Officer in the assessment order? The Revenue claims thatas per Office Manual/ procedure, unless arequest was received from the assessee forfurnishing of copy of statement and otherdocuments, the Revenue need not provided suchstatement and documents. The fact remains thatthe proceeding before the Assessing Officer isa judicial proceeding under Section 136 of theAct. When a statement or other materialcollected by the Assessing Officer or otherincome-tax authorities in the course ofinvestigation or enquiry, the same has to befurnished to the assessee and an opportunityshall be given to the assessee to rebut thesame. In India, we are following adversarysystem of judicial administration, therefore,no order can be passed against any person bythe judicial authorities/officers who areentrusted with judicial work withoutfurnishing relevant copies of the document andstatement on which reliance was placed. 8. In this case, admittedly, theAssessing Officer placed reliance on thestatement recorded during the course of surveyoperation and other material found during thecourse of survey operation. Principles ofnatural justice is one of the cordial rule tobe followed in the adversary system ofjudicial administration. Rule of law issupreme in this country, therefore, unless itotherwise provided in the relevant statuteenacted by the Legislature, the principles ofnatural justice cannot be taken away by meansof the procedure or the formalities prescribedin the Office Manual which is meant for theinternal administration of Department. In thiscase, even the Office Manual was not broughtto the notice of the Bench even though the Ld.D.R. claims that as per Office Manual, copiesneed to be furnished only on request. ThisTribunal is of the considered opinion thatirrespective of the request of the assesseefor the copies of statement and documents, thesame shall be furnished to the assessee incase the Assessing Officer intended to rely onsuch statement and the documents. In thiscase, the copies of the statement and otherdocuments relied upon by the Assessing Officerwere not furnished to the assessee, therefore,there was gross violation of principles of natural justice. Accordingly, the orders ofthe authorities below are set aside and theentire issue is remitted back to the file ofthe Assessing Officer. The Assessing Officershall furnish the copies of documents andstatement to the assessee and given sufficientopportunity to rebut the same, and thereafterdecide the issue afresh in accordance withlaw.' 9. Post aforesaid order of ITAT, sole respondentbefore this Court, who is the Assessing Officer, took up thematter. When sole respondent took up the matter in this manner,writ petitioner assessee wrote a letter dated 27.08.2018 to therespondent, making a request to drop the proceedings, therespondent responded by way of communication dated 10.09.2018and this was followed by exchange of another set ofcommunication between writ petitioner and respondent assessee.This is letter dated 12.10.2018 from the writ petitionerassessee and response to the same from the respondent assesseevide communication is dated 13.11.2018. To capture the sum andsubstance of these communications between writ petitioner andrespondent post remand, this Court considers it appropriate toextract relevant portions from the said communications and themost relevant portions of 27.08.2018 letter from the writpetitioner are contained in paragraph-5 and the next paragraphand the same read as under: '5. No mention about the receipt ofbogus donation from M/s.Marina Shipbrokers inthe sworn statement submitted by Mrs.SamdritaMukherjee Sardar: a. As per the copies ofsurvey report enclosed with theletter to us we would like tostate that on perusal of thesworn statement of Mrs.SamdritaMukherjee Sardar, there is nomention about the receipt ofBogusdonationfromus(M/s.Marina Shipbrokers), hencewe would like to seek as to howyour goodself offices came toconclusion that we had resortedto unfair means and passed anorder against us.b. The sworn statementwas recorded under Section 133Awherein there are numerousjudicial precedence that thesworn statement cannot be taken as a basis to reach conclusionin the assessment. '5. No mention about the receipt ofbogus donation from M/s.Marina Shipbrokers inthe sworn statement submitted by Mrs.SamdritaMukherjee Sardar: a. As per the copies ofsurvey report enclosed with theletter to us we would like tostate that on perusal of thesworn statement of Mrs.SamdritaMukherjee Sardar, there is nomention about the receipt ofBogusdonationfromus(M/s.Marina Shipbrokers), hencewe would like to seek as to howyour goodself offices came toconclusion that we had resortedto unfair means and passed anorder against us.b. The sworn statementwas recorded under Section 133Awherein there are numerousjudicial precedence that thesworn statement cannot be taken as a basis to reach conclusionin the assessment. c. Whatever statement isrecorded under Section 133A ofthe Income Tax Act it is notgiven any evidentiary valueobviously for the reason thatthe officer is not authorisedto administer oath and to takeany sworn statement which alonehas evidentiary value ascontemplated under law, videPaul Mathews and Sons vs. CIT(2003) 263 ITR 101 (Ker).d. An admission isextremely an important piece ofevidence but it cannot be saidthat it is conclusive and it isopen to the person who made theadmission to show that it isincorrect and that the assesseeshould be given a properopportunity to show that thebooks of accounts do notcorrectly disclose the correctstate of fats, vide decision ofthe Apex Court in PullangodeRubber Producer Co. Ltd. vs.State of Kerala, [1973] 91 ITR18. e. Hence as per the pointc. stated above we request youto kindly give as evidence withproper supporting material soas to understand that thematerial was used against us asan evidence for establishingthe bogus donation.It is submitted that there is no acceptableand cogent evidence to show that the claimmade by us is not true or correct. Sincethere are conflicting evidences madeavailable by the same parties, hence it issubmitted that it has to be found that thisis not a fit case and the assessmentproceedings may be dropped.' 10. Respondent responded to the same as mentionedsupra vide communication dated 10.09.2018 and the most relevantportion of this reply reads as under: 'As per the directions of the Hon'bleITAT, documents were furnished to you vide thisoffice letter dated 17.01.2018. The assessmentwas competed based on the statements recordedat the time of survey from Smt.SamandritaMukerjee Sardar, Secretary of Ms.School ofHuman Genetics & Population Health andSri.Swapan Rajan Das Gupta, Founder Director ofMs.Herbicure Healthcare Bio-Herbal researchFoundation. The same documents were furnishedto you as per directions of the Hon'ble ITAT.The Documents received from the higherauthorities in this Office relates to theSurvey report and related papers which areconfidential in nature, hence the entiredocuments cannot be furnished.' 11. This takes us to the next set of communicationsand with regard to 12.10.2018 communication from the writpetitioner, relevant portion reads as under: 'Kindly provide us with the following asper the directions of the Hon ITAT:Copy of the investigation reportconducted by your good self which clearlyimplicates US and also establishes thatthe donation made were bogus in nature. As per the Principle of Natural Justice,we request you to provide us with anopportunity to cross examine the partieswhose sworn statements are being used toimplicate US. Failure to carry out the thoroughinvestigation as per the directions of HonITAT will be construed as the contempt ofthe Court, hence we request you to carryout thorough investigation and provide uswith the evidence to prove that thedecision to pass an adverse order againstus is Justifiable.' 12. Writ petitioner responded vide 13.11.2018 replyand the same reads as under: 'Kindly provide us with the following asper the directions of the Hon ITAT:Copy of the investigation reportconducted by your good self which clearlyimplicates US and also establishes thatthe donation made were bogus in nature. As per the Principle of Natural Justice,we request you to provide us with anopportunity to cross examine the partieswhose sworn statements are being used toimplicate US. Failure to carry out the thoroughinvestigation as per the directions of HonITAT will be construed as the contempt ofthe Court, hence we request you to carryout thorough investigation and provide uswith the evidence to prove that thedecision to pass an adverse order againstus is Justifiable.' 12. Writ petitioner responded vide 13.11.2018 replyand the same reads as under: 'The Hon'ble ITAT vide their orderdated 27.09.2017, has categorically directedthe Assessing Officer to provide thedocuments relied upon and not anything beyondthat. Hence, your request made in your letterdated 12.10.2018 for cross-examination of theparties from whose statements were recorded,cannot be considered and hence rejected.' 13. After the aforesaid two sets of communications,the respondent has written one more letter dated 19.11.2018,reiterating its earlier request and thereafter the impugnedorder came to be passed. 14. In the hearing today, learned counsel for writpetitioner, adverting to the impugned order, submitted that itrefers to sworn statements from Secretary of Genetics School andFounder Director of Herbicure Foundation. The impugned ordermentions that in these sworn statements, these two individualshave admitted to having given accommodation entries by way ofcommission to different beneficiaries in the guise of donationreceipts to be finally given back to the donors in the form ofcash or cheque. 15. There is no disputation or disagreement beforethis Court that relevant portions of the Survey Report was nodoubt furnished to the writ petitioner assessee post remand byITAT. Therefore the pivotal issue on which the writ petition wasargued is writ petitioner's request to cross-examine aforesaidtwo individuals namely Secretary of Genetics School and FounderDirector of Herbicure Foundation. 16. To support his argument, learned counsel for writpetitioner pressed into service a judgment of this Court inCommissioner of Income-Tax vs. S.Khader Khan Son reported in[2008] 300 ITR 157 (Mad). Before this Court adverts to KhaderKhan case, reported in [2008] 300 ITR 157 (Mad) [rendered by aDivision Bench of this Court], it is necessary to mention thatKhader Khan case was carried to Supreme Court and Hon'bleSupreme Court vide order dated 20.09.2012 made in Civil AppealNo.6747 of 2012 confirmed the order of the Division Bench ofthis Court vide judgment of Hon'ble Supreme Court inCommissioner of Income-Tax vs. S.Khader Khan Son reported in[2013] 352 ITR 480 (SC). What is of utmost relevance is [2013]352 ITR 480 (SC) order was made by Hon'ble Supreme Court postleave, i.e., in the second part of Article 136 of Constitutionof India. Therefore there is doctrine of merger and thereforeDivision Bench order in Khader Khan case has merged with theSupreme Court order and resultantly precedent value of KhaderKhan case is that of a ratio of the Hon'ble Supreme Court.Khader Khan case was pressed into service by learned counsel onthis basis. The principle in Khader Khan's case is that astatement made under Section 133A of IT Act does not haveevidentiary value as an Officer of the Income Tax Department isnot authorized to administer oath and take any sworn statement.Relying on Khader Khan principle, it was submitted that thesworn statement made by two individuals in the instant case,namely, Secretary of Genetics School and Founder Director of Healthcare Foundation does not have any evidentiary value andtherefore the respondent assessee ought not to have relied onthe same without giving an opportunity to the writ petitioner tocross-examine the two individuals. Furthering his argument inthis direction, learned counsel for writ petitioner referred torelevant portions of the Survey Report which was furnished tothe writ petitioner post remand by ITAT and submitted thatFounder Director of Healthcare Foundation has deposed that theaccommodation of bogus donations was facilitated by one KishanBhawasingka. It was submitted that neither Kishan Bhawasingka'sstatement was furnished to the writ petitioner nor any cross-examination permitted. 17. Furthering his submissions in this direction,learned counsel for writ petitioner submitted that this isclearly violation of 'natural justice principle' ('NJP' forbrevity). 18. Responding to the aforesaid submissions, learnedRevenue Counsel submitted that what is of utmost importance isthat the aforesaid two sworn statements from the two individualsalone do not constitute the basis of the impugned order. Inother words, it was submitted by learned Revenue Counsel thatthere are other corroborating material before the Court and theimpugned order was passed based on such corroborating material. 19. It was also pointed out that respondent has cometo the conclusion that it is not just a case of accommodationbeing provided, but it is also a case where the cash wasrerouted to the writ petitioner assessee. In this regard,learned Revenue Counsel drew the attention of this Court toparagraph-8 of the counter-affidavit which reads as under:'8. It is submitted that in all thepetitioner had given a donation to claimweighter deduction of 175% to theorganisation which in turn had merely issuesa receipt by providing an accommodationentry and thereby the cash was rerouted tothe petitioner itself. It was clearlybrought out by the Investigation Wing of theCalcutta Region and therefore, it is not afit case for entertaining in the writjurisdiction and is liable to be rejected asit involves appreciationof facts.Therefore, the writ petition is liable to berejected on the ground of alternative remedyas well as devoid of merits.(Underlining made by thisCourt to supply emphasis and highlight)' 20. This Court notices that the writ petitioner hasnot filed any rejoinder and disputed this aspect of the matter. 21. In this regard, it is also to be noted that evenin the first round of assessment order i.e., assessment orderdated 29.03.2016, as pointed out by learned Revenue Counsel,there is a clear mention that the alleged donations were routedback to the writ petitioner. This is articulated in paragraph-6of the earlier assessment order dated 29.03.2016 and therelevant portion in paragraph-6 reads as under: 'However, evidences gathered during thecourse of the surveys found that thetransactions were not genuine as the donorsmerely took accommodation entries and thealleged donations were routed back to themafter deduction of commission by the entryprovider at various stages.' 22. Adverting to the aforesaid scenario, learnedRevenue Counsel submitted that this is not a case of improvingthe impugned order by way of a counter-affidavit as even in theearlier round, it was clearly put against the writ petitionerthat donations were routed back to the writ petitioner and thisremains unrefuted. 23. Responding to the above, learned counsel for writpetitioner submitted that they will now be in a position torefute and demonstrate that there was no routing back. This, inthe considered opinion of this Court, turns on factual aspectsof the case. 22. Adverting to the aforesaid scenario, learnedRevenue Counsel submitted that this is not a case of improvingthe impugned order by way of a counter-affidavit as even in theearlier round, it was clearly put against the writ petitionerthat donations were routed back to the writ petitioner and thisremains unrefuted. 23. Responding to the above, learned counsel for writpetitioner submitted that they will now be in a position torefute and demonstrate that there was no routing back. This, inthe considered opinion of this Court, turns on factual aspectsof the case. 24. In this regard, learned counsel for writpetitioner pointed out that a statutory appeal remedy isavailable to the writ petitioner, by way of a statutory appealto the Commissioner of Income Tax Appeals under Section 246A ofIT Act. A perusal of Section 246A of IT Act reveals that theinstant case will fall under Section 246A(1)(a). 25. Before adverting to alternate remedy, it is alsonecessary to notice that the question of permitting cross-examination will turn heavily on the facts and circumstances ofeach case. In the instant case, the question as to whether therewas routing back at all is a very crucial question, which willimpact the writ petitioner's right to seek cross-examination. Inthis regard, a judgment of Hon'ble Supreme Court in AndamanTimber Industries vs. Commissioner of Customs Excise, Kolkata-IIreported in MANU/SC/1250/2015 is of significance, relevantparagraph is paragraph-6 and the same reads as under: '6. As mentioned above, the Appellant had contested the truthfulness of the statements of these two witnesses and wantedto discredit their testimony for whichpurpose it wanted to avail the opportunity ofcross-examination.Thatapart,theadjudicating authority simply relied upon theprice list as maintained at the depot todetermine the price for the purpose of levyof excise duty. Whether the goods were, infact, sold to the said dealers/witnesses atthe price which is mentioned in the pricelist itself could be the subject-matter ofcross-examination. Therefore, it was not forthe adjudicating authority to presuppose asto what could be the subject-matter of thecross-examination and make the remarks asmentioned above. We may also point out thaton an earlier occasion when the matter camebefore this Court in Civil Appeal No.2216 of2000, order dated 17-3-2005 [2005 (187)E.L.T. A33 (S.C.)] was passed remitting thecase back to the Tribunal with the directionsto decide the appeal on merits giving itsreasons for accepting or rejecting thesubmissions.' 26. In this view of the matter, it is also necessaryto examine as to whether alternate remedy in the instant casewill be effective and efficacious. In other words, it would beappropriate to make a contra-test as to whether the alternateremedy will become ineffectual or not efficacious in the lightof the discussion thus far. 28. A perusal of sub-section (4) of Section 250 of ITAct makes it clear that the Statutory Appellate Authority namelyCIT-A has powers to make further inquiry by himself or directthe Assessing Officer to make further inquiry, report the resultand thereafter dispose of the statutory appeal on the basis ofsuch inquiry conducted by himself or on the basis of postinquiry report from the Assessing Officer in this regard. 29. In the light of sub-section (4) of Section 250, itis clear that if the writ petitioner is relegated to alternateremedy of appeal under Section 246A(1)(a) of IT Act, in theinstant case, the appeal will not be ineffectual or notefficacious. In other words, the appeal has ample and adequatescope to permit the writ petitioner to raise this issue ofcross-examination and the Appellate Authority can also look intothe same in the light of factual disputes pertaining to thefactual issue of re-routing and thereafter decide the appeal. 30. This takes us to alternate remedy as a principle. 29. In the light of sub-section (4) of Section 250, itis clear that if the writ petitioner is relegated to alternateremedy of appeal under Section 246A(1)(a) of IT Act, in theinstant case, the appeal will not be ineffectual or notefficacious. In other words, the appeal has ample and adequatescope to permit the writ petitioner to raise this issue ofcross-examination and the Appellate Authority can also look intothe same in the light of factual disputes pertaining to thefactual issue of re-routing and thereafter decide the appeal. 30. This takes us to alternate remedy as a principle. 31. With regard to exercise of writ jurisdiction onthe teeth of alternate remedy, the restraint which the WritCourts have placed on themselves is a self-imposed restraint. Inother words, Rule of alternate remedy is clearly a self-imposedrestraint. It follows as a sequitur that the alternate remedyrule is not a rule of compulsion and it is a rule of discretion.To put it differently, alternate remedy rule is not an absoluterule, but it is a rule of discretion. Though alternate remedyrule is a rule of discretion and it is a self-imposed restraintqua Writ Courts, Hon'ble Supreme Court has repeatedly held thatalternate remedy rule has to be applied with utmost rigour whenit comes to matters pertaining to recovery of tax, cess, etc., 32. This Court reminds itself of Dunlop case, beingAssistant Collector of Central Excise vs. Dunlop India Ltdreported in (1985) 1 SCC 260 and relevant paragraphs in Dunlopcase are paragraphs 3 and 4 and the same read as under:'3. In Titaghur Paper Mills Co.Ltd. v. State of Orissa [(1983) 2 SCC 433 :1983 SCC (Tax) 131 : 1983 Tax LR 2905 :(1983) 142 ITR 663 : (1983) 53 STC 315] A.P.Sen, E.S. Venkataramiah and R.B. Misra, JJ.held that where the statute itself providedthe petitioners with an efficaciousalternative remedy by way of an appeal to thePrescribed Authority, a second appeal to thetribunal and thereafter to have the casestated to the High Court, it was not for theHigh Court to exercise its extraordinaryjurisdiction under Article 226 of the Constitution ignoring as it were, thecomplete statutory machinery. That it hasbecome necessary, even now, for us to repeatthis admonition is indeed a matter of tragicconcern to us. Article 226 is not meant toshort-circuitorcircumventstatutoryprocedures. It is only where statutoryremedies are entirely ill-suited to meet thedemands of extraordinary situations, as forinstance where the very vires of the statuteis in question or where private or publicwrongs are so inextricably mixed up and theprevention of public injury and thevindication of public justice require it thatrecourse may be had to Article 226 of theConstitution. But then the Court must havegood and sufficient reason to bypass thealternative remedy provided by statute.Surely matters involving the revenue wherestatutory remedies are available are not suchmatters. We can also take judicial notice ofthe fact that the vast majority of thepetitions under Article 226 of theConstitution are filed solely for the purposeof obtaining interim orders and thereafterprolong the proceedings by one device or theother. The practice certainly needs to bestrongly discouraged. 4. In Union of India v. Oswal WoollenMills Ltd. [(1984) 2 SCC 646 : 1984 SCC (Cri)348] we had occasion to consider an interimorder passed by the Calcutta High Court inregard to a matter no part of the cause ofaction relating to which appeared to arisewithin the jurisdiction of the Calcutta HighCourt. In that case the interim orderpractically granted the very prayers in thewrit petition. We were forced to observe:[SCC para 4, pp. 649-50: SCC (Cri) p. 352] “It is obvious that the interim order isof a drastic character with a great potentialfor mischief. The principal prayer in thewrit petition is the challenge to the ordermade or proposed to be made under clause 8-Bof the Import Control Order. The interimorder in terms of prayers (j) and (k) has theeffect of practically allowing the writpetition at the stage of admission withouthearing the opposite parties. While we do notwish to say that a drastic interim order may never be passed without hearing the oppositeparties even if the circumstances justify it,we are very firmly of the opinion that astatutory order such as the one made in thepresent case under clause 8-B of the ImportControl Order ought not to have been stayedwithout at least hearing those that made theorder. Such a stay may lead to devastatingconsequences leaving no way of undoing themischief. Where a plentitude of power isgiven under a statute, designed to meet adire situation, it is no answer to say thatthe very nature of the power and theconsequences which may ensue is itself asufficient justification for the grant of astay of that order, unless, of course, thereare sufficient circumstances to justify astrong prima facie inference that the orderwas made in abuse of the power conferred bythe statute. A statutory order such as theone under clause 8-B purports to be made inthe public interest and unless there are evenstronger grounds of public interest an exparte interim order will not be justified.The only appropriate order to make in suchcases is to issue notice to the respondentsand make it returnable within a short period.This should particularly be so where theoffices of the principal respondents andrelevant records lie outside the ordinaryjurisdiction of the court. To grant interimrelief straightaway and leave it to therespondents to move the court to vacate theinterim order may jeopardise the publicinterest. It is notorious how if an interimorder is once made by a court, parties employevery device and tactic to ward off the finalhearing of the application. It is, therefore,necessary for the courts to be circumspect inthe matter of granting interim relief, moreparticularly so where the interim relief isdirected against orders or actions of publicofficials acting in discharge of their publicduty and in exercise of statutory powers. Onthe facts and circumstances of the presentcase, we are satisfied that no interim reliefshould have been granted by the High Court inthe terms in which it was done.” [Underlining made by this Court tosupply emphasis and highlight] 33. More than one and half decades after Dunlop case,in Satyawadi Tandon Case, [United Bank of India Vs. SatyawatiTondon and others reported in (2010) 8 SCC 110] and K.C.Mathewcase [Authorized Officer, State Bank of Travancore Vs. MathewK.C. reported in (2018) 3 SCC 85] were restated. To be noted,Satyawati Tondon principle was reiterated in latter of the twoi.e., K.C.Mathew. In Satyawati Tondon case and K.C.Mathew caseregarding rule of alternate remedy, the principle that such arule, though a rule of discretion and not a rule of compulsion,should be exercised with greater rigour in fiscal law statuteshas been laid down. More importantly, in Satyawati Tondon case,Hon'ble Supreme Court held that such a rule has to be appliedwith utmost rigour when it comes to cases involving taxes, cess,fees etc., In other words, when it comes to fiscal statutes,these rules have to be applied with greater rigour and it is tobe applied very strictly with regard to recovery of taxes, CESS,fess etc., Relevant paragraph in K.C.Mathew case (cited supra)is paragraph 10 and the same reads as follows: '10. In Satyawati Tondon the High Courthad restrained further proceedings underSection 13(4) of the Act. Upon a detailedconsideration of the statutory scheme underthe SARFAESI Act, the availability ofremedy to the aggrieved under Section 17before the Tribunal and the appellateremedy under Section 18 before theAppellate Tribunal, the object and purposeof the legislation, it was observed that awrit petition ought not to be entertainedin view of the alternate statutory remedyavailable holding: (SCC pp.123 & 128, Paras43 & 55) “43. Unfortunately, the High Courtoverlooked the settled law that the HighCourt will ordinarily not entertain apetition under Article 226 of theConstitution if an effective remedy isavailable to the aggrieved person and thatthis Rule applies with greater rigour inmatters involving recovery of taxes, cess,fees, other types of public money and thedues of banks and other financialinstitutions. In our view, while dealingwith the petitions involving challenge tothe action taken for recovery of the publicdues, etc., the High Court must keep inmind that the legislations enacted byParliament and State Legislatures forrecovery of such dues are a code unto themselves inasmuch as they not onlycontaincomprehensiveprocedureforrecovery of the dues but also envisageconstitution of quasi-judicial bodies forredressal of the grievance of any aggrievedperson. Therefore, in all such cases, theHigh Court must insist that before availingremedy under Article 226 of theConstitution, a person must exhaust theremedies available under the relevantstatute. 55.It is a matter of serious concernthat despite repeated pronouncement of thisCourt, the High Courts continue to ignorethe availability of statutory remediesunder the DRT Act and the SARFAESI Act andexercise jurisdiction under Article 226 forpassing orders which have serious adverseimpact on the right of banks and otherfinancial institutions to recover theirdues. We hope and trust that in future theHigh Courts will exercise their discretionin such matters with greater caution, careand circumspection. [underlining made by this Courtto highlight and supply emphasis]' 34. In the light of the narrative thus far, this Courtis clear that it is a fit case to relegate the writ petitionerto alternate remedy making it clear that all questions raised bythe writ petitioner including questions pertaining to cross-examination can be raised by the writ petitioner before CIT-Aand the issue of whether the cash was rerouted to the writpetitioner being a factual dispute can also be gone into by CIT-A for taking a decision on writ petitioner's request for cross-examination. 35. With regard to the alternate remedy of statutoryappeal before CIT-A under Section 246A(1)(a) of IT Act in theinstant case, the same has to be filed within 30 days from thedate of service of notice of demand. In the instant case, thenotice of demand as per usual practice was served along with theimpugned order dated 29.11.2018 and it was served on the writpetitioner on 24.12.2018. Before the expiry of 30 daystherefrom, instant writ petition has been presented before thisCourt on 22.01.2019. Therefore, this Court deems it appropriateto exclude the period spent by the writ petitioner in theinstant writ petition i.e., the period from 22.01.2019 to thedate on which copy of this order is made available, by applyingthe principle adumbrated in Section 14 of Limitation Act. 35. With regard to the alternate remedy of statutoryappeal before CIT-A under Section 246A(1)(a) of IT Act in theinstant case, the same has to be filed within 30 days from thedate of service of notice of demand. In the instant case, thenotice of demand as per usual practice was served along with theimpugned order dated 29.11.2018 and it was served on the writpetitioner on 24.12.2018. Before the expiry of 30 daystherefrom, instant writ petition has been presented before thisCourt on 22.01.2019. Therefore, this Court deems it appropriateto exclude the period spent by the writ petitioner in theinstant writ petition i.e., the period from 22.01.2019 to thedate on which copy of this order is made available, by applyingthe principle adumbrated in Section 14 of Limitation Act. 36. Notwithstanding such exclusion, even if delayoccurs, the same is condonable under Section 249(3) of IT Actand there is no cap for the same. The power to condone the delayis vested with CIT-A. If the need arises to the writ petitionerto seek condonation of delay, notwithstanding exclusion of timespent in the instant writ petition, it is open to the writpetitioner to file a delay condonation application before CIT-Aand the same shall be decided by CIT-A on its own merits and inaccordance with law. 37. As this Court is now relegating the writpetitioner to alternate remedy of a statutory appeal before CIT-A, though obvious it is made clear that all questions raised bythe writ petitioner in the instant writ petition, includinggrounds canvassed and contentions urged are left open. Withregard to scope of the appeal itself, the same has been alludedto and set out supra elsewhere in this order. If the writpetitioner chooses to file a statutory appeal, the same shall bedecided by the Appellate Authority namely CIT-A keeping in mindobservations of this Court regarding the scope of the appeal,more particularly, Section 250(4) of IT Act. 38. Writ petition is disposed of with the abovedirections. There shall be no order as to costs. Consequently,connected miscellaneous petition is closed. Assistant Registrar (CS-) //True Copy// SvnTo The Income Tax Officer,Non-Corporate Ward 11(2),2[nd] Floor, Room No.203,BSNL Building, Tower II,No.16, Greams Road,Chennai-600 006. +1cc to Mr.K.Gowtham Kumar. Advocate, S.R.No.71999 +1cc to Mr.J.Narayanaswamy, Advocate, S.R.No.71424 MG(CO)CB(27/09/2019) W.P.No.1896 of 2019