2014 (4) TMI 1304 - HC - Income Tax

Writ petition filled seeking to challenge the notice issued by ACIT - Admittedly, on the same cause of action writ petitioner had earlier filed one writ petition and the same was dismissed by the Division Bench as withdrawn on the request of writ petitioner - HELD THAT - The applicability of the principle of Rule 1 of Order XXIII CPC to writ petitions under Article 226/227 is thus not on the ground of res judicata but on ground of public policy. It would also discourage the litigant from indulging in bench-hunting tactics. In any event there is no justifiable reason in such a case to permit a petitioner to invoke the extraordinary jurisdiction of the High Court under Article 226 once again. In the instant case, the High Court was right in holding that a fresh writ petition was not maintainable before it in respect of the same subject-matter since the earlier writ petition had been withdrawn without permission to file a fresh petition. Even on merits there was no ground to reverse the decision of the High Court. Present writ petition is not entertainable because it was not disputed by the learned counsel for the petitioner that the cause of action which was the subject matter of the earlier writ petition and the one involved in the present writ petition is identical an d secondly, no liberty was taken to file second petition. That being so, this writ petition deserves to be dismissed in limini in the light of the law laid down by the Hon ble Supreme Court in the case of Sarguja 1986 (11) TMI 377 - SUPREME COURT

Summary

Issues:
Challenge to notice issued by Assistant Commissioner of Income Tax under Article 226/227 of the Constitution of India. Previous dismissal of a writ petition as withdrawn and the legality of filing a fresh writ petition on the same subject matter.

Analysis:

1. The petitioner sought to challenge a notice issued by the Assistant Commissioner of Income Tax through a writ petition under Article 226/227 of the Constitution of India. The petitioner had previously filed a writ petition on the same cause of action, which was dismissed as withdrawn by the Division Bench upon the petitioner's request.

2. The order dated 22.8.2013 regarding the dismissal of the earlier writ petition highlighted that the petitioner and another entity were interconnected. Subsequently, the petitioner sought liberty to establish its rights in appropriate civil proceedings, which was allowed by the court.

3. The High Court referred to the law laid down by the Hon'ble Supreme Court in the case of Sarguja Transport Service vs. State Transport Appellate Tribunal, emphasizing that when a petitioner withdraws a petition without permission to file a fresh one, it should be deemed as abandoning the remedy under Article 226/227 for the cause of action in the withdrawn petition.

4. The court noted that the principle underlying Rule 1 of Order XXIII of the CPC should be extended to cases of withdrawal of writ petitions in the interest of justice and to discourage litigants from forum shopping. It was emphasized that the remedy under Article 226/227 should not be permitted again if a petition was withdrawn without permission.

5. The High Court concluded that a fresh writ petition was not maintainable on the same subject matter since the earlier petition had been withdrawn without permission to file a new one. The court held that the present writ petition was not entertainable based on the law laid down by the Supreme Court, and thus, dismissed the writ petition in limine.

6. The judgment highlighted that the cause of action in the earlier writ petition and the present one was identical, and no liberty was taken to file a second petition. Therefore, the court found no grounds to reverse the decision and dismissed the writ petition accordingly, emphasizing that no costs were to be awarded in this matter.