2022 (1) TMI 298 - HC - Income Tax

Stay of demand - Alternate remedy of an appeal u/s 246A - HELD THAT - A careful perusal of the narrative thus far will make it clear that the writ petitioner has been given adequate and ample opportunities but the writ petitioner has not availed the same. The argument that the notice dated 10.08.2018 itself makes it clear that it is a e-process also weighs in the mind of this Court. In the light of the alternate remedy being not only efficacious and effective but also a highly tenable option in the case on hand owing to 25% of demand having been already deposited by the writ petitioner, we deem it appropriate to relegate the writ petitioner to the alternate remedy of an appeal under Section 246A of IT Act. No reason to interfere qua impugned orders i.e., impugned assessment order dated 09.12.2019 and impugned demand notice dated 09.12.2019, but it is made clear that if the writ petitioner chooses to approach the appellate authority u/s 246A of IT Act, it is well open to the appellate authority to consider the appeal on its own merits and in accordance with law uninfluenced by any observation made in this order which may come across as an observation on merits or which may come across as an observation having the trappings of an expression of opinion on merits of the matter.

Issues:
Challenge to assessment order and demand notice based on alleged lack of opportunity to explain stand due to assessing officer's absence, consideration of alternate remedy under Section 246A of IT Act, application of alternate remedy rule, exceptions to alternate remedy rule, relevance of prior notices in determining availability of alternate remedy.

Analysis:
1. Challenge to Assessment Order and Demand Notice:
The petitioner challenged an assessment order and a demand notice issued on 09.12.2019, claiming lack of opportunity to explain her stand due to the assessing officer's absence. The petitioner contended that she was served with a show cause notice on 23.11.2019 but found the officer on leave when she visited the office. The Revenue counsel disputed this claim, stating that the assessing officer was available on the scheduled hearing date. The court refrained from delving into factual disputes in writ jurisdiction.

2. Consideration of Alternate Remedy:
The Revenue counsel argued that the petitioner had multiple prior notices under the Income Tax Act before the impugned show cause notice. Emphasizing the availability of an alternate remedy under Section 246A of the IT Act, the counsel suggested that the petitioner could appeal and request not to be treated as an 'Assessee-in-default.' The court noted that the petitioner had already paid 25% of the demanded amount as per an interim order.

3. Application of Alternate Remedy Rule:
The court discussed the alternate remedy rule, highlighting that it is a discretionary self-imposed restraint in writ jurisdiction. Citing precedents, the court emphasized the need to rigorously apply the rule in fiscal law matters. Referring to judgments like Dunlop India and Satyawati Tandon, the court underscored the importance of exhausting statutory remedies before seeking relief under Article 226 of the Constitution.

4. Exceptions to Alternate Remedy Rule:
The court referenced the 'Whirlpool exceptions' and a recent Supreme Court judgment in Commercial Steel Limited case, outlining exceptions where a writ petition can be entertained despite the availability of an alternate remedy. The exceptions include breaches of fundamental rights, violations of natural justice, excess of jurisdiction, or challenges to the vires of statutes or delegated legislation. In this case, the court found no grounds for exceptions to apply.

5. Dispositive Reasoning:
After careful consideration, the court concluded that the petitioner had sufficient opportunities to address the issues but had not availed them. Given the effective alternate remedy under Section 246A of the IT Act and the petitioner's partial payment of the demanded amount, the court decided to relegate the petitioner to the appellate authority for appeal. The court declined to interfere with the impugned orders but clarified that the appellate authority should decide the appeal independently.

6. Final Disposition:
The writ petition was disposed of accordingly, and the associated Writ Miscellaneous Petition was closed without costs. The judgment emphasized the importance of exhausting statutory remedies in tax matters and highlighted the significance of following established legal principles in seeking relief under writ jurisdiction.

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