2019 (8) TMI 1728 - HC - Income Tax

Alternate remedy of statutory appeal available under the Act - Extra ordinary jurisdiction of this Court challenging the impugned order u/s 115Q read with 115O - HELD THAT - Looking to the peculiar facts of the case it is only for the Commissioner of Income Tax (Appeals) to decide his jurisdiction in accordance with law. Therefore it would be appropriate that the petitioner files an appeal to the Commissioner of Income Tax (Appeals) within a period of three weeks from today. On petitioners filing an appeal the Commissioner of Income Tax (Appeals) shall within a further period of three weeks from the date of filing decide the issue of maintainability of the appeal before him in the context of section 246A of the Act. In case the Commissioner of Income Tax (Appeals) holds that the appeal from the impugned order dated 14 March 2019 passed under section 115O of the Act is available and the appeal as filed is maintainable then this petition will be withdrawn by the Petitioner. This as an effective alternate remedy is available.

Summary

Issues involved:
1. Challenge to tax demand and direction to pay without allowing time for appeal.
2. Invocation of extraordinary jurisdiction to challenge the impugned order under the Income Tax Act.
3. Availability of efficacious alternate remedy through statutory appeal under section 246A of the Act.
4. Jurisdiction of the Commissioner of Income Tax (Appeals) to decide on the maintainability of the appeal.

Analysis:

1. The petitioner challenged the Assessing Officer's action in raising a tax demand of INR 5,872.13 Crores without allowing time for appeal. The counsel argued that the order was unsustainable in law and the petitioner should have been given the opportunity to approach the Appellate Authority before being directed to pay the amount. The court acknowledged the peculiar facts of the case and granted time for the respondent to file a reply, staying the tax recovery in the meantime until further proceedings scheduled for 12/04/2019.

2. The petitioner invoked the extraordinary jurisdiction of the court to challenge the order passed by the Respondent under sections 115Q and 115O of the Income Tax Act, citing the absence of an efficacious alternate remedy through statutory appeal. The court noted that the impugned order mentioned only a revision under section 264 of the Act as an available remedy, leading to the contention that no statutory appeal was provided for.

3. The Additional Solicitor General informed the court that an alternate remedy was available under section 246A of the Act, allowing an appeal to the Commissioner of Income Tax (Appeals) from the impugned order. The court emphasized that it was for the Commissioner of Income Tax (Appeals) to determine the appeal's maintainability in accordance with the law. The petitioner was directed to file an appeal within three weeks, with the Commissioner required to decide on the appeal's maintainability within a further three-week period.

4. The court clarified that if the Commissioner of Income Tax (Appeals) deemed the appeal maintainable, the petitioner would withdraw the petition as an effective alternate remedy would be available. However, withdrawing the petition would not prevent the petitioner from challenging other orders passed by the Authorities under the Act if entitled to do so. The matter was scheduled for further direction on 1 October 2019, with the interim stay granted earlier to continue until the next date.