9911796707
TMI Blog1983 (9) TMI 33X X X X Extracts X X X X X X X X Extracts X X X X ..... his return and in the return the property income from this flat was not shown. The ITO, while passing the impugned order, set out the contentions of the petitioner that he is neither the owner of the flat nor can he be deemed to be the owner, and rejected the contention holding that the income from the house property is assessable to tax. The learned counsel on behalf of the Revenue raised a preliminary objection to the maintainability of the petition, submitting that the petitioner has an efficacious alternative remedy provided under the I.T. Act, 1961. The petitioner could prefer an appeal under s. 246 of the I.T. Act before the AAC, and if aggrieved, further appeal to the Commissioner and then to the Tribunal. The learned counsel submi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... thorities, when the statute under which tax is sought to be levied provides a remedy by way of an appeal or other proceeding to a party aggrieved and thereby bypass the statutory machinery. That is not to say that the High Court will never entertain a petition against the order of the taxing officer. The High Court has undoubtedly jurisdiction to decide whether a statute under which a tax is sought to be levied is within the legislative competence of the Legislature enacting it or whether the statute defies constitutional restrictions or infringes any fundamental rights, or whether the taxing authority has arrogated to himself power which he does not possess, or has committed a serious error of procedure which has affected the validity of h ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 26 of the Constitution in regard to an order of assessment passed under the Sales Tax Act (see headnote): " That the Act provided for a complete machinery to challenge an order of assessment and the orders of assessment in this case could be challenged only by the mode prescribed by the Act and not by a petition under art. 226 of the Constitution of India. The Act provided for an adequate safeguard against an arbitrary or unjust assessment. The petitioners had a right to prefer appeals tinder s. 23(1), subject to their payment of the admitted amount of tax as enjoined by the proviso thereto, and as regards the disputed amount of tax, they had the remedy of applying for stay of recovery to the Commissioner under cl. (a) of the second provis ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... daben Mafatlal v. Karandikar [1982] Mah LJ 732, where sitting in a Division Bench, I had observed that there is no hard and fast rule that the High Court will not entertain a petition under article 226 of the Constitution when there is remedy of appeal available to a litigant. In that decision, we declined to drive the litigant to file an appeal for several circumstances, and we had not concluded, as now claimed by the petitioner, that in every case where the petition is admitted and pending in this court for two years, the litigant should not be driven to file an appeal. It was also urged by the petitioner that the learned single judge, who admitted the petition, was satisfied about the maintainability of the petition and, therefore, I sho ..... X X X X Extracts X X X X X X X X Extracts X X X X
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