2012 (7) TMI 642 - HC - Income Tax

Writ Petition Held 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 - petitioner has already availed the alternate remedy of appeal - Writ Petition dismissed

Summary

Issues:
Challenge to assessment order for the assessment year 2008-09. Availability of alternate remedy of appeal against the order of assessment.

Analysis:
The petitioner challenged the order of assessment dated 20/12/2010 passed by the Assistant Commissioner of Income Tax, Ratlam for the assessment year 2008-09 through a Writ Petition. The respondents raised a preliminary objection regarding the availability of an alternate remedy of appeal against the assessment order. They cited various judgments to support their argument, including those from the Madras High Court, Bombay High Court, and Delhi High Court, emphasizing that in tax matters, statutory remedies should not be short-circuited. The respondents highlighted that the petitioner should have filed an appeal instead of resorting to a Writ Petition. The respondents also referred to a judgment of the Delhi High Court emphasizing the importance of resorting to statutory remedies rather than extraordinary writ jurisdiction under Article 226 of the Constitution, especially in tax matters.

The petitioner, however, argued that since the jurisdiction of the assessing authority was under challenge, the Writ Petition was maintainable. The petitioner relied on a Division Bench judgment in support of their argument. After hearing both parties and examining the case record and the judgments cited by them, the court noted that the petitioner had already filed an appeal before the Commissioner of Income Tax (Appeals), Range - Ujjain against the impugned assessment order. It was observed that in the appeal, the petitioner had also questioned the jurisdiction of the assessing authority. Therefore, the court concluded that the petitioner could not pursue parallel remedies before two forums simultaneously on the same issue. As the petitioner had already availed the alternate remedy of appeal, the court declined to entertain the Writ Petition at that stage and dismissed it, granting liberty to the petitioner to continue pursuing the appeal remedy already availed.

In summary, the High Court dismissed the Writ Petition challenging the assessment order for the assessment year 2008-09 as the petitioner had already filed an appeal before the Commissioner of Income Tax (Appeals), Range - Ujjain, questioning the jurisdiction of the assessing authority. The court emphasized the importance of not pursuing parallel remedies on the same issue and upheld the principle of resorting to statutory remedies in tax matters, dismissing the Writ Petition with liberty for the petitioner to continue pursuing the appeal remedy already availed.