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TMI Blog2004 (4) TMI 24X X X X Extracts X X X X X X X X Extracts X X X X ..... nce dismissed X X X X Extracts X X X X X X X X Extracts X X X X ..... the language in section 80-IA/80-IB of the Income-tax Act. (d) That deduction under section 80-IA/80-IB is available only when the industry is engaged in manufacturing or producing article or thing, but under the Sales Tax Act, processing has also been treated as manufacturing. (e) Respondent No. 2 (Income-tax Officer, Banswara) has placed reliance on the judgment of the Calcutta High Court in the case of Appeejay Pvt. Ltd. v. CIT [1994] 206 ITR 367 which specifically dealt with section 80-I and the Calcutta High Court observed that the assessee of that case was merely mixing and blending tea and sold it in the market and that processing of tea did not involve manufacturing of any article or thing and the Calcutta High Court did not allow deduction as claimed by the assessee of that case under, section 80-I. (viii) Aggrieved from the assessment order dated December 4, 2003 (annexure 4), passed by respondent No. 2 (Income-tax Officer, Banswara), this writ petition has been filed by the petitioner. In this writ petition, the main submission of learned counsel for the petitioner is that when this court in the case of Dhunseri Tea Industries [2001] 1 Tax Update 235 has held that p ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... same has been availed of by the petitioner though no final adjudication has taken place in that appeal, the present writ petition is maintainable or not. In my opinion where an alternative and equally efficacious remedy is available to a litigant, he should pursue that remedy and may not invoke special jurisdiction of the High Court to issue a prerogative writ. The remedy under article 226 being, in general, discretionary, the High Court may refuse to grant it where there exists an alternative remedy, equally efficient and adequate, unless there are good grounds therefor, but where a party complaining of fraud had no other alternative remedy available, he could avail of writ remedy and for that the following authorities may be referred to: (i) Thansingh Nathmal v. Superintendent of Taxes [1964] 15 STC 468; AIR 1964 SC 1419; (ii) Kerala State Electricity Board v. Kurien E. Kalathil [2000] 6 SCC 293; (iii) United India Insurance Co. Ltd. v. Rajendra Singh [2000] 100 Comp Cas 705; [2000] 3 SCC 581; and (iv) K.S. Rashid and Son v. Income-tax Investigation Commission [1954] 25 ITR 167 (SC); AIR 1954 SC 207. The question whether the alternative remedy is equally efficacious or ad ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 2003 (annexure 4), the Income-tax Officer, Banswara (respondent No. 2) has correctly followed the relevant laws or not? In my opinion, the above questions are questions of fact or mixed questions of fact and law which should not be decided for the first time in writ jurisdiction under article 226 of the Constitution of India and they should be left to be decided by the statutory forum. From this point of view also, the writ petition is not maintainable. The hon'ble Supreme Court in the case of K.S. Rashid and Son v. Income-tax Investigation Commission reported in [1954] 25 ITR 167 (SC); AIR 1954 SC 207 has observed as under: "The remedy provided for in article 226 of the Constitution is a discretionary remedy and the High Court has always the discretion to refuse to grant any writ if it is satisfied that the aggrieved party can have an adequate or suitable relief elsewhere. Where the petitioners have already availed themselves of the remedy provided for in section 8(5) of the Taxation of Income (Investigation Commission) Act and a reference has been made to the High Court in terms of that provision which is awaiting decision, it would not be proper to allow the petitioners to i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Dube, STO, AIR 1967 SC 549; [1963] 14 STC 410. In the case of Union of India v. S.J. Thanawalla reported in [1996] 8 SCC 469, the hon'ble Supreme Court has held that when the appeal against the impugned order was pending, the High Court was justified in not going into that question and relegating the parties to the decision of the Appellate Tribunal. When alternative remedy does not bar relief It should not, however, be forgotten that the existence of an alternative remedy is not an absolute bar to the granting of a writ under article 226 but "is a thing to be taken into consideration in the matter of granting writs." In other words, the existence of an alternative remedy is a rule of policy, practice and discretion and not a rule of law. It is a self-imposed limitation and cannot oust the jurisdiction of the court. In exceptional circumstances, the High Court may grant relief under article 226, even if an alternative remedy is available to the aggrieved person. The existence of an alternative remedy is no ground for refusing prohibition or certiorari where- (a) the absence or excess of jurisdiction is patent and the application is made by the party aggrieved, or (b) there i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e preferred by the assessee or the Income-tax Department and such appeal lies to the Appellate Tribunal which is the final fact-finding authority (section 252 to section 255) (iii) Appeal against the order of the Appellate Tribunal can be preferred by the assessee or the Income-tax Department and such appeal lies to the High Court on a substantial question of law (sections 260A and 260B). (iv) Appeal can be preferred against the order of the High Court either by the assessee or by the Income-tax Department to the Supreme Court which is the final appellate authority (section 261 and section 262) Thus, against the assessment order, the appeal lies to the Commissioner (Appeals) and against the order of the Commissioner (Appeals), the appeal lies to the Appellate Tribunal and against the order of the Appellate Tribunal, appeal lies to this court on question of law and thus, still the petitioner has to cross two stages and without exhausting the above two stages, the petitioner has directly approached this court under article 226 of the Constitution of India. For the above reason also, the petitioner would not be permitted to approach the High Court without exhausting the other alter ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... iew also, it cannot be said that the impugned assessment order dated December 4, 2003 (annexure 4), passed by respondent No. 2 (Income-tax Officer, Banswara) is without jurisdiction and this argument raised by learned counsel for the petitioner stands rejected. In view of the law just discussed above, the authority of this court in the case of Guljag Industries Ltd. v. State of Rajasthan reported in [2002] 13 Sales Tax Today 11; [2003] 129 STC 3, would not be helpful to learned counsel for the petitioner and this aspect has already been considered by this court under the heading "When alternative remedy does not bar relief." For the reasons mentioned above, the present writ petition is treated as not maintainable as the petitioner has alternative remedy and the petitioner has already availed of that remedy by way of filing appeal before the Commissioner (Appeals) which is still pending and, hence the writ petition is liable to be dismissed as not maintainable. Thus, it is held that the present writ will not be entertained straightaway against the assessment order until all avenues of appeal under the Income-tax Act, 1961 are availed of. For the reasons mentioned above, the prese ..... X X X X Extracts X X X X X X X X Extracts X X X X
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