2003 (11) TMI 39 - HC - Income Tax

Maintainability of writ petition - impugned order is passed by the Commissioner (Appeals) in exercise of his appellate powers conferred under section 251 - Such an order is appealable under section 253 to the Tribunal - Sub-section (5) of section 253 empowers the Appellate Tribunal to condone the delay in filing appeal, if it is delayed. The petitioner has a further remedy of second appeal under section 260A of the Act to the High Court against the order of the Tribunal and then lastly to the Supreme Court under article 136 of the Constitution of India Since alternate remedy is available, writ petition is not maintainable

Summary

Issues:
Challenge to order of Commissioner of Income-tax (Appeals) - Availability of alternative remedy of appeal under section 253 of the Income-tax Act.

Analysis:
The petitioner, an income-tax assessee, sought to challenge the order passed by the Commissioner of Income-tax (Appeals) through a writ petition. The primary issue for consideration was whether the court should entertain the writ or decline to do so based on the availability of an alternative remedy of appeal under section 253 of the Income-tax Act to the Appellate Tribunal. The judge, A. M. Sapre, heard the petitioner's counsel on the question of admission and reviewed the case record. The judge concluded that the petitioner had an alternative remedy of appeal to address the impugned first appellate order. It was noted that as per established legal principles recognized by the Supreme Court, when a statutory remedy is available to challenge an order, it should be utilized before resorting to a writ petition under articles 226 and 227 of the Constitution of India.

The judge emphasized that it is a well-settled rule of law that no writ should be entertained when an aggrieved party has a remedy of appeal to pursue. The judge found no exceptional circumstances in the case that warranted deviating from this legal principle. The impugned order was passed by the Commissioner (Appeals) under section 251 of the Act and was appealable to the Appellate Tribunal under section 253. The petitioner also had the option of a second appeal to the High Court under section 260A and further to the Supreme Court under article 136 of the Constitution of India. The judge highlighted that the Act provides a comprehensive forum of remedies, making it inappropriate to entertain the writ petition.

Consequently, the judge determined that there was no merit in the writ petition and dismissed it outright, granting the petitioner the liberty to file an appeal as per the available statutory remedies. The judge clarified that since the writ was deemed not entertainable, there was no need to delve into the merits and demerits of the issues raised in the petition. Any issues could be addressed by the Tribunal during the appeal process in accordance with the law. The petition was dismissed, and the petitioner was given a week to comply with the decision.