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TMI Blog2021 (12) TMI 261X X X X Extracts X X X X X X X X Extracts X X X X ..... jurisdiction as it is neither excess of jurisdiction or any other issue leading to a jurisdictional issue. It is nobody's case that there was any violation of 'principles of natural justice' ('NJP') in the case on hand. Case on hand is not challenge to a statute or subordinate legislation. There is nothing demonstrable qua breach of fundamental rights. To put in a nutshell, none of the Commercial Steel exceptions are attracted. Writ petitioner is under the impression that appeal remedy is available under Section 248 of the IT Act. Considering the impugned order, it may not be under Section 248 of the IT Act as that pertains to 'Tax Deduction at Source' (TDS). However, in the case on hand, the appeal remedy will be under 246-A of the IT Act. It is not necessary to dilate further on this and for the purposes of this case it will suffice to say that there is a appeal remedy and there is nothing to demonstrate that appeal remedy is not efficacious. When the appeal remedy is available and there is nothing to demonstrate that it is not efficacious, in the light of the discussion and dispositive reasoning thus far, this Court has no hesitation in hol ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e writ petitioner was awarded the contract by TAMIN. Thereafter, the writ petitioner quarried for the contractual period. Though the second respondent did not renew the contract, the writ petitioner filed a civil suit and on the basis of interim order, continued quarrying, to be noted, this is the admitted averment of the writ petitioner. However, it is not necessary to go into that aspect of the matter as it may be out side the four corners of the captioned main writ petition. As far as the captioned main writ petition is concerned, the writ petitioner filed return of income for said AY on 13.09.2015 admitting an income of ₹ 14,79,470/- and claimed a sum of ₹ 2,58,67,698/- which according to the writ petitioner is 5% increased value of granite for the period from 01.12.2008 to 31.03.2014. Thereafter, the case of the writ petitioner was selected for limited scrutiny inter alia under Section 143(2) of IT Act by the first respondent. To be noted, this is to verify the genuineness of 'other expenses'. 5. Ultimately, assessment was made under Section 143(3) of the IT Act and the impugned order came to be made. Assailing the impugned order, captioned writ petiti ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on the exercise of setting out the discussion and giving its dispositive reasoning qua captioned main writ petition for arriving at a conclusion. 11. This Court finds that the impugned order i.e., impugned assessment order proceeds on the basis that the raising-cum-selling agreement i.e., aforementioned 30.11.2005 agreement between the petitioner and TAMIN requires the difference between the selling price and the raising rate to be paid for production of minerals with taxes, if any. In other words, the assessment order proceeds on the basis that the selling price is only Ex- Quarry price. This Court refrains itself from expressing any opinion on the correctness or otherwise of this aspect of the matter as this Court is convinced that this is a fit case to relegate the writ petitioner to alternate remedy and there shall be a discussion about the same elsewhere in this order. However, it will suffice to say that a perusal of the impugned order reveals that adequate opportunity has been given to the writ petitioner as the writ petitioner has appeared, made his submissions and also sent replies. 12. This takes us to the arguments regarding penalty. As rightly pointed out by the l ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ice or the other. The practice certainly needs to be strongly discouraged.' ( Underlining made by this Court to supply emphasis and highlight ) 14. Satyawati Tandon principle was reiterated by Hon'ble Supreme Court in K.C.Mathew case. Relevant paragraph in K.C.Mathew case is paragraph 10 and the same reads as follows: '10. In Satyawati Tondon the High Court had restrained further proceedings under Section 13(4) of the Act. Upon a detailed consideration of the statutory scheme under the SARFAESI Act, the availability of remedy to the aggrieved under Section 17 before the Tribunal and the appellate remedy under Section 18 before the Appellate Tribunal, the object and purpose of the legislation, it was observed that a writ petition ought not to be entertained in view of the alternate statutory remedy available holding: (SCC pp.123 128, Paras 43 55) 43. Unfortunately, the High Court overlooked the settled law that the High Court will ordinarily not entertain a petition under Article 226 of the Constitution if an effective remedy is available to the aggrieved person and that this Rule applies with greater rigour in matters invo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... writ petition can be entertained in exceptional circumstances where there is: (i) a breach of fundamental rights; (ii) a violation of the principles of natural justice; (iii) an excess of jurisdiction; or (iv) a challenge to the vires of the statute or delegated legislation. 12 In the present case, none of the above exceptions was established. There was, in fact, no violation of the principles of natural justice since a notice was served on the person in charge of the conveyance. In this backdrop, it was CA 5121/2021 7 not appropriate for the High Court to entertain a writ petition. The assessment of facts would have to be carried out by the appellate authority. As a matter of fact, the High Court has while doing this exercise proceeded on the basis of surmises. However, since we are inclined to relegate the respondent to the pursuit of the alternate statutory remedy under Section 107, this Court makes no observation on the merits of the case of the respondent.' 16. A perusal of aforementioned exceptions make it clear that in the case on hand, none of the exceptions are attracted as would be evident from the narrative (narrative that includes capturing rival submission ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... iscussion and dispositive reasoning thus far, this Court has no hesitation in holding that this is a fit case for relegating the writ petitioner to the alternate remedy under Section 246-A of IT Act. 20. The sequitur is captioned writ petition or in other words campaign against the impugned order in writ jurisdiction fails and the writ petition is dismissed, albeit, preserving the rights of the writ petitioner to prefer a statutory appeal inter alia under Section 246-A of IT Act subject of course to limitation and pre-deposit condition, if any. If the writ petitioner files an appeal, as already alluded to supra, subject to limitation and subject to pre-deposit condition if any, the said appeal shall be considered on its own merits and in accordance with law by the appellate authority. It is also made clear that it is open to the writ petitioner to seek exclusion of time spent in the captioned writ petition under Section 14 of the Limitation Act and if the writ petitioner chooses to do so, the Appellate Authority shall decide the same on its own merits and in accordance with law. 21. In the light of the main writ petition being dismissed captioned W.M.P.(MD)No.940 of 2017 is ..... 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