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2017 (4) TMI 1034 - HC - Income TaxAvailability of alternative remedy - method to be followed to determine the ALP of the petitioner s case - Held that - When an alternative remedy is available, more particularly, in the cases of fiscal nature, invoking of the jurisdiction under Article 226 of the Constitution of India, is not permissible. When the petitioner is having an alternative remedy of appeal to file the appeal before the CESTAT, it is for them to file such appeal and canvass all the points. This Court exercising discretionary jurisdiction under Article 226 of the Constitution of India, is not inclined to entertain this writ petition only on the reason of availability of alternative remedy. It is however made clear that this Court is not expressing any view on the merits of the matter raised by the petitioner herein, as it is for the Appellate Authority to consider and decide. Accordingly, these writ petitions are dismissed only on the ground of availability of alternative remedy, with liberty to the petitioner to approach the said First Appellate Forum.
Issues:
1. Challenge to order of Income Tax Appellate Tribunal for assessment years 2010-2011 & 2011-2012. 2. Application of Delhi High Court judgment in determining arm's length price. 3. Jurisdiction under Article 226 of the Constitution of India. 4. Availability of alternative remedy through appeal before the First Appellate Authority. Analysis: 1. The writ petitions challenge the order of the Income Tax Appellate Tribunal for the assessment years 2010-2011 & 2011-2012. The Tribunal remitted the matter back to the Assessing Officer for consideration based on a Delhi High Court judgment, leading to the impugned order by the first respondent. The petitioner contends that the first respondent did not apply the Delhi High Court decision to their case, seeking intervention under Article 226 of the Constitution of India. The Revenue argues that any challenge to the order should be made before the First Appellate Authority, not the High Court. 2. The petitioner argues that the first respondent did not correctly apply the Delhi High Court judgment in determining the arm's length price (ALP). The High Court notes that the first respondent distinguished the facts of the present case from the Delhi High Court case, leaving the correctness of this distinction for the next fact-finding authority to decide. The High Court emphasizes that the First Appellate Authority is the appropriate forum to consider and decide on such matters involving the interpretation of facts and circumstances. 3. In considering the jurisdiction under Article 226 of the Constitution of India, the High Court finds that the petitioner has an effective alternative remedy through appeal before the First Appellate Authority. Citing precedents, the High Court emphasizes that in fiscal matters, statutory appellate remedies must be exhausted before approaching the High Court under Article 226. Therefore, the High Court declines to entertain the writ petition at this stage, highlighting the availability of the alternative remedy. 4. The High Court dismisses the writ petitions based on the availability of the alternative remedy of appeal before the First Appellate Authority. It clarifies that the decision does not reflect any opinion on the merits of the petitioner's case, as it is within the jurisdiction of the Appellate Authority to assess and decide. The High Court concludes by granting liberty to the petitioner to approach the First Appellate Forum and closes the connected miscellaneous petitions without costs.
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