2021 (5) TMI 119 - HC - Income Tax

Assessment u/s 144 challenged - parallel remedies - standing counsel pointed out that in respect of the impugned order, the petitioner has already filed an appeal before the appellate authority and that the appeal petition is pending before the Commissioner of Income Tax (Appeals) - HELD THAT - We sustain the said objection. It is well settled that a litigant cannot pursue parallel remedies. Of course, in the affidavit filed in support of the writ petition, it has been fairly stated that the petitioner had already filed an appeal. But then, the claim is made that the appellate authority cannot decide the issue raised in the writ petition. We cannot appreciate such a conduct. Mere filing of the appeal before the appellate authority will not foreclose the right of the petitioner to move the writ court. But then, the appeal should have been withdrawn. Without withdrawing the appeal, one cannot parallely maintain the two. In any event, the learned standing counsel would point out that the appellate authority is very much competent to go into all the contentions raised in the writ petition. Therefore, leaving open the right of the petitioner to pursue the appeal remedy, this writ petitions are dismissed

Summary

Issues:
1. Maintainability of the writ petition when an appeal has been filed before the appellate authority.

Analysis:
The judgment in question deals with the issue of the maintainability of a writ petition under Section 144 of the Income Tax Act, 1961, when an appeal has already been filed before the appellate authority. The assessing authority passed an order under Section 144 on a best judgment assessment basis, which was challenged by the petitioner through a writ petition. The respondent argued that since the petitioner had already filed an appeal before the Commissioner of Income Tax (Appeals), the writ petition was not maintainable as pursuing parallel remedies is not allowed.

The court upheld the respondent's objection, stating that a litigant cannot pursue parallel remedies. While acknowledging that the petitioner had filed an appeal, the court emphasized that the appellate authority is competent to address the issues raised in the writ petition. The court expressed disapproval of the petitioner's conduct in not withdrawing the appeal before seeking relief through the writ petition. The judge clarified that merely filing an appeal does not preclude the right to approach the writ court, but the appeal should have been withdrawn to avoid maintaining parallel proceedings.

In conclusion, the court dismissed the writ petition while allowing the petitioner to pursue the appeal remedy. The judge made it clear that the decision did not delve into the merits of the case and no costs were imposed. The judgment highlights the importance of following proper legal procedures and avoiding parallel proceedings to ensure the orderly resolution of disputes.