Case Law Details
HIGH COURT OF MADHYA PRADESH
Naresh Kumar
V/s.
Assistant Commissioner of Income-tax
Writ Petition No. 1634 of 2011
September 29, 2011
ORDER
1. By this Writ Petition the petitioner has challenged the order of assessment dated 20/12/2010 passed by the Assistant Commissioner of Income Tax, Ratlam for the assessment year 2008-09.
2. A preliminary objection has been raised by the respondents in respect of the availability of alternate remedy of appeal against the order of assessment and in this regard he has placed reliant. upon the Division Bench judgment of the Madras High Court in the matter of Dr. K. Nedunchezhian v. Dy. CIT [2005] 279 ITR 342/148 Taxman 617 wherein it has been held that in the tax matters there should be no short circuiting of the statutory remedies. The said view has been taken by the Division Bench of the Madras High Court placing reliance upon the judgment of the Supreme Court in the matter of Titaghur Paper Mills Co. Ltd. v. State of Orissa [1983] 142 ITR 663 and Asstt. CCE v. Dunlop India Ltd. [1985] 154 ITR 172. He has also placed reliance upon the Division Bench judgment of the Bombay High Court in the matter of Indrakumar Patodia v. ITO [2011] 13 taxmann.com 7 wherein it has been held that the Writ Petition challenging the assessment order cannot be entertained as the assessee has an alternate remedy of filing an appeal. He has further relied upon the Division Bench Judgment of the Delhi High Court in the matter of Rahulijee & Co. (P.) Ltd. v. ITAT [2010] 323 ITR 327 taking the view that when a statute creates a right or liability or also prescribes the remedy or procedure for enforcement of that right or liability, resort must be had to the said statute remedy rather than invoking the extraordinary and prerogative writ jurisdiction of the Court under Article 226 of the Constitution and this principle applies with greater force to the matters arising out of the taxing statute. Further reliance has been placed in the matter of Maharashtra State Electricity Distribution Co. Ltd. v. CIT [Writ Petition No. 256 of 2009, dated 27-4-2009] wherein High Court had refused to exercise the writ jurisdiction when alternate remedy of appeal was available under Section 246(1) of the IT Act.
3. As against this, learned counsel appearing for the petitioner submitted that since the jurisdiction of the assessing authority is under challenge, therefore, the writ is maintainable. He has placed reliance upon the Division Bench judgment in the matter of Smt. Savita Garg v. CIT [2007] 159 Taxman 373 (All.)
4. We have heard the learned counsel for parties and perused the record of the case as well as the judgments relied upon by them.
5. On the perusal of the record, it is noticed that the petitioner has already preferred an appeal before the Commissioner of Income Tax (Appeals), Range – Ujjain against the impugned order of assessment. The memo of appeal indicates that in the said appeal the petitioner has also questioned the jurisdiction of the assessing authority. Therefore, the petitioner cannot be permitted to pursue the parallel remedy before two forums at the same time raising the same issue.
6. Since, petitioner has already availed the alternate remedy of appeal, therefore, we are not inclined to entertain the present Writ Petition at this stage which is accordingly dismissed with liberty to the petitioner to pursue the remedy of appeal which he has already availed.
