HC dismisses writ petition as petitioner is having alternative statutory remedy of appeal

Ankit Gupta Vs National Faceless Assessment Centre (Rajasthan High Court)

This writ petition has been filed by the petitioner challenging the assessment order dated 30.09.2021 as well as recovery notice dated 30.09.2021 issued in pursuance to the assessment order.

Counsel for the petitioner submits that proper opportunity of hearing has not been provided to the petitioner by the assessing authority prior to passing the assessment order.

In support of his contention counsel relied upon the order dated 16.08.2021 passed by the Co-ordinate Bench of this court in the matter of M/s Inder Prasad Mathura Lal Vs. The National E assessment Centre & Anr. (S.B. Civil Writ Petition No.7757/2021) and further relied upon the judgment passed by the Bombay High Court in the matter of Mantra Industries Limited Vs. National Faceless Assessment Centre (NFAC or NeAC) & Ors. (Writ Petition No.1625 of 2021) decided on 11.10.2021.

Admittedly, the petitioner is having alternative statutory remedy of appeal against the assessment order as well as recovery notice.

The Hon’ble Supreme Court in the matter of Genpact India Private Limited Vs. Deputy Commissioner of Income Tax & Anr. (Civil Appeal No.8945 of 2019) decided on 22.11.2019 where in para No.15, it has been held as under:-

“15. We now turn to the question whether the High Court was justified in refusing to entertain the writ petition because of availability of adequate appellate remedy. The law on the point is very clear and was summarised in Commissioner of Income Tax and others v. Chhabil Dass Agarwal2 as under:-

“11. Before discussing the fact proposition, we would notice the principle of law as laid down by this Court. It is settled law that non- entertainment of petitions under writ jurisdiction by the High Court when an efficacious alternative remedy is available is a rule of self-imposed limitation. It is essentially a rule of policy, convenience and discretion rather than a rule of law. Undoubtedly, it is within the discretion of the High Court to grant relief under Article 226 despite the existence of an alternative remedy. However, the High Court must not interfere if there is an adequate efficacious alternative remedy available to the petitioner and he has approached the High Court without availing the same unless he has made out an exceptional case warranting such interference or there exist sufficient grounds to invoke the extraordinary jurisdiction under Article 226. (See State of U.P. v. Mohd. Nooh, Titaghur Paper Mills Co. Ltd. v. State of Orissa, Harbanslal Sahnia v. Indian Oil Corpn. Ltd.5 and State of H.P. v. Gujarat Ambuja Cement Ltd.)

12. The Constitution Benches of this Court in K.S. Rashid and Son v. Income Tax Investigation Commission, Sangram Singh v. Election Tribunal, Union of India v. T.R. Varma, State of U.P. v. Mohd. Nooh and K.S. Venkataraman and Co. (P) Ltd. v. State of Madras have held that though Article 226 confers very wide powers in the matter of issuing writs on the High Court, the remedy of writ is absolutely discretionary in character. If the High Court is satisfied that the aggrieved party can have an adequate or suitable relief elsewhere, it can refuse to exercise its jurisdiction. The Court, in extraordinary circumstances, may exercise the power if it comes to the conclusion that there has been a breach of the principles of natural justice or the procedure required for decision has not been adopted. [See N.T. Veluswami Thevar v. G. Raja Nainar, Municipal Council, Khurai v. Kamal Kumar, Siliguri Municipality v. Amalendu Das, S.T. Muthusami v. K. Natarajan , Rajasthan SRTC v. Krishna Kant, Kerala SEB v. Kurien E. Kalathil, A. Venkatasubbiah Naidu v. S. Chellappan, L.L. Sudhakar Reddy v. State of A.P., Shri Sant Sadguru Janardan Swami (Moingiri Maharaj) Sahakari Dugdha Utpadak Sanstha v. State of Maharashtra, Pratap Singh v. State of Haryana and GKN Driveshafts (India) Ltd. v. ITO]

…

15. Thus, while it can be said that this Court has recognised some exceptions to the rule of alternative remedy i.e. where the statutory authority has not acted in accordance with the provisions of the enactment in question, or in defiance of the fundamental principles of judicial procedure, or has resorted to invoke the provisions which are repealed, or when an order has been passed in total violation of the principles of natural justice, the proposition laid down in Thansingh Nathmal case, Titaghur Paper Mills case and other State of H.P. v. Gujarat Ambuja Cement Ltd.) similar judgments that the High Court will not entertain a petition under Article 226 of the Constitution if an effective alternative remedy is available to the aggrieved person or the statute under which the action complained of has been taken itself contains a mechanism for redressal of grievance still holds the field. Therefore, when a statutory forum is created by law for redressal of grievances, a writ petition should not be entertained ignoring the statutory dispensation.”

Recently, in Authorised Officer, State Bank of Travancore & Anr. v. Mathew K.C., the principles laid down in Chhabil Dass Agarwal were reiterated as under:

“The discretionary jurisdiction under Article 226 is not absolute but has to be exercised judiciously in the given facts of a case and in accordance with law. The normal rule is that a writ petition under Article 226 of the Constitution ought not to be entertained if alternate statutory remedies are available, except in cases falling within the well-defined exceptions as observed in CIT v. Chhabil Dass Agarwal …”

In that view of the matter, this writ petition is dismissed as the petitioner is having alternative statutory remedy of appeal.