2005 (3) TMI 87 - HC - Income Tax

Alternate remedy of filing an appeal under section 246 read with section 251 of the Income-tax Act even if there is violation of natural justice or the order is without jurisdiction, the writ petition can still be dismissed if there is an alternative remedy appeal is dismissed

Summary

Issues:
Challenge to assessment notice under section 158BC of the Income-tax Act, 1961; Invocation of writ jurisdiction under article 226 of the Constitution in tax matters; Availability of alternative statutory remedies; Power of Commissioner (Appeals) post-amendment by the Finance Act, 2001; Dismissal of writ appeals despite claims of violation of natural justice and lack of jurisdiction.

Analysis:
The judgment involved two connected writ appeals challenging the assessment notice under section 158BC of the Income-tax Act, 1961. The court noted that the first writ petition was dismissed due to the assessment order already being passed, and the subsequent writ petition was also dismissed on the grounds of an alternative remedy of filing an appeal under section 246 read with section 251 of the Income-tax Act. The court emphasized the need to follow the hierarchy of appeals provided by the statute before resorting to writ jurisdiction, especially in tax matters.

The court cited various decisions of the Supreme Court to support the principle that statutory remedies should not be short-circuited, particularly in tax matters. It highlighted that the writ jurisdiction under article 226 of the Constitution should not be invoked when there is an alternative remedy available. The judgment emphasized that the vast majority of petitions under article 226 are filed to obtain interim orders and prolong proceedings, a practice that needs to be discouraged.

Regarding the power of the Commissioner (Appeals) post-amendment by the Finance Act, 2001, the court clarified that the appellate authority retains the power to decide the entire matter without remanding it to the Assessing Officer. The court reiterated that the appellate power includes all powers of the original authority, allowing the appellant to raise all relevant points in the appeal under section 246/251 of the Income-tax Act.

Additionally, the judgment discussed the dismissal of writ petitions even in cases of alleged violation of natural justice or lack of jurisdiction if an alternative remedy is available. It distinguished previous Supreme Court decisions and reiterated the need to exhaust statutory remedies before seeking relief through writ jurisdiction. The court dismissed both writ appeals and associated applications, emphasizing that no costs were to be awarded.

In conclusion, the judgment underscored the importance of following statutory remedies, especially in tax matters, and discouraged the misuse of writ jurisdiction for interim relief. It clarified the powers of the appellate authority post-amendment and reiterated that alternative remedies must be exhausted before approaching the High Court for relief.