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TMI Blog2019 (6) TMI 1181X X X X Extracts X X X X X X X X Extracts X X X X ..... consequential demand notice dated 26.12.2018, and sought a writ of certiorari to quash the same. He also sought a writ of mandamus directing the Assessing Authority not to assess the income of the appellant-writ petitioner as the same was derived from agriculture. 2. A sum of Rs. 88.73 lakhs were found deposited in the bank account of the appellant-writ petitioner. Thereafter, on the basis of the information furnished by the Directorate of Intelligence, Kanpur, the Assessing Authority issued a notice under Section 142(1) of the Income Tax Act (for short "the Act"). The appellant-writ petitioner submitted his reply thereto. Thereafter, a best judgment assessment was passed under Section 144 of the Act read with Section 147 thereof. 3. The ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rit petitioner, would rely on a judgment of the Kerala High Court in Travancore Diagnostics P. Ltd. vs. Assistant Commissioner of Income Tax: (2017) 390 ITR 167 (Ker), to submit that, in the absence of a notice being issued under Section 143(2) of the Act, no best judgment assessment, under Section 144 of the Act, could have been passed; and the impugned order, passed without even putting the assessee on notice under Section 143(2) of the Act, was not only in violation of principles of natural justice, but was also without jurisdiction. Learned counsel would rely on the judgment of the Supreme Court, in Whirlpool Corporation vs. Registrar of Trade Mark, Mumbai & others: (1998) 8 SCC 1, to submit that a Writ Petition would lie, among other g ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... -writ petitioner, whether or not such a remedy was available, learned counsel, while stating that a statutory remedy of an appeal was undoubtedly available, would contend that mere existence of an alternative remedy did not bar the appellant-writ petitioner from invoking the writ jurisdiction of this Court. 8. Since reliance is placed, on behalf of the appellant-writ petitioner on Whirlpool Corporation, it is useful to refer to the law declared therein. The Supreme Court held:- "..... The power to issue prerogative writs under Article 226 of the Constitution is plenary in nature and is not limited by any other provision of the Constitution This power can be exercised by the High Court not only for issuing writs in the nature of Habeas Co ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s not affected, specially in a case where the authority against whom the Writ is filed is shown to have had no jurisdiction or had purported to usurp jurisdiction without any legal foundation." (emphasis supplied) 9. The law laid down, in Whirlpool Corporation, is that existence of an alternative remedy is not a bar for this Court to exercise its writ jurisdiction under Article 226 of the Constitution. The power of the judicial review, conferred upon the High Court under Article 226 of the Constitution of India, is a part of the basic structure of the Constitution. (L. Chandra Kumar vs. Union of India and others: AIR 1997 SC 1125). Such a power cannot, therefore, be negated or circumscribed even by an amendment to the Constitution, let al ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... i.e. the Appellate Authority under Section 246 of the Income Tax Act. 12. Yet another reason why we must refrain from interference is because the scope of interference in an intra-court appeal is extremely limited. Interference by a Division Bench, in an intra-court appeal, would be justified only if the order under appeal suffers from a patent illegality. The learned Single Judge is not a court subordinate. The Division Bench exercises the very same jurisdiction which the learned Single Judge exercises under Article 226 of the Constitution of India. Even in cases where two views are possible, and one of the possible views has found acceptance with the learned Single Judge, the Division Bench would refrain from interfering with the order u ..... X X X X Extracts X X X X X X X X Extracts X X X X
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