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TMI Blog2021 (9) TMI 1333X X X X Extracts X X X X X X X X Extracts X X X X ..... ng already filed a revision prior to filing of the writ petition, we are not inclined to lift to bar of alternate remedy. For that reason, the other decision of the Supreme Court relied by the learned Senior Advocate in the case of Harbans Lal Sahania [ 2002 (12) TMI 564 - SUPREME COURT] is also of no help to the petitioner. As to the last decision relied by learned Senior Advocate is of the Gurgaon Realtek Limited vs. National Faceless Assessment Centre, Delhi [ 2021 (6) TMI 433 - DELHI HIGH COURT] we find, in that case, a remedy of appeal had been availed by the assessee. However, the Delhi High Court lifted the bar of alternate remedy taking note of the ground of lack of jurisdiction on account of limitation. In that case, the Delhi High Court reached a conclusion that the assessment order could not have been passed under Section 143 (3A) and 143 (3B) on 15.04.2021 as that date fell after the date 31.03.2021. Here we are unable to reach that conclusion. The facts are otherwise. There is no bar of limitation being pressed into service. The other contention of petitioner that the preliminary objection has been raised for the first time today by means of the counter affidavit and t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d Sri Rakesh Ranjan Agrawal, Sri Amrendra Nath Singh, learned Senior Advocates with Sri Prabha Shankar Mishra, Sri Vinay Kumar Tiwari, Sri Anil Pathak, Sri Ramanuj Tiwari, Sri Amitabh Agrawal and Sri Ajit Kumar, learned Advocates, for the petitioner; Sri Gaurav Mahajan learned counsel for the revenue and Sri Krishna Agarwal, learned counsel for the union of India. The present petition has been filed by the High Court Bar Association, Allahabad to quash the assessment order dated 24.12.2019 passed by the Income Tax Officer-1 (5), Allahabad assessing the petitioner society to tax for the assessment year 2017-18 under the provisions of Section 144 of The Income Tax Act, 1961 (hereinafter referred as to the 'Act'). The writ petition appears to have been filed in June, 2021 i.e. with laches of more than one and a half year. At the fresh stage itself, affidavits have been exchanged. The orders contained on the order sheet do not reflect any substantial hearing has taken place, till now. However, by the order dated 25.06.2021, on the prayer of learned counsel for the Revenue, time was granted to file a counter affidavit. Thus, affidavits came to be exchanged at the fresh stage i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... y the petitioner society to any of the notices issued during the course of the proceedings, the assessing authority has, without any jurisdiction, framed the assessment order under Section 144 of the Act which provision could only be resorted upon the satisfaction of the pre-conditions for its exercise. None of the pre-conditions have been satisfied and therefore the same is stated to be a nullity. In that regard, learned Senior Advocate would also submit if any application of mind had been made by the assessing authority, it would have become plainly clear that there was no business or taxable income of the petitioner society. Thus, it has been hinted that the assessment order has been passed for oblique motives to cause harassment to the petitioner society which is comprised of practicing lawyers of the Allahabad High Court. In support, reliance has been placed on the decision of Division Bench of this Court in M/s Shahnaz Ayurvedic vs. Commissioner of Central Excise and others 2004 UPTC 737; decisions of the Supreme Court in Whirlpool Corporation vs. Registrar of Trade Marks, Mumbai JT 1998 (7) SC 243; Harbans Lal Sahania and Another vs. IOC 2003 (2) SCC 107 and a decision of t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... In the present case, neither that objection has been raised nor there is any fact similarity between the two cases. Here, on the admission of the petitioner though it did not file an appeal, yet it has filed a revision which is still pending consideration. In our opinion, the ratio in the case of Whirlpool Corporation vs. Registrar of Trade Marks, Mumbai (supra), is distinguishable, inasmuch as the ratio in that case contained in paragraph no. 13 of the report reads as under:- "13. Under Article 226 of the Constitution, the High Court, having regard to the facts of the case, has a discretion to entertain or not to entertain a writ petition. But the High Court has imposed upon itself certain restrictions one of which is that if an effective and efficacious remedy is available, the High Court would not normally exercise its jurisdiction. But the alternative remedy has been consistently held by this Court not to operate as a bar in at least three contingencies, namely, where the writ petition has been filed for the enforcement of any of the Fundamental Rights or where there has been a violation of the principle of natural justice or where the order or proceedings are wholly wi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... at regard. The matter does not appear to have been heard on merits nor such hearing could be inferred from the perusal of the order sheet. At the same time, the order sheet only indicates that on the first date itself, the revenue sought and was granted time to file counter affidavit. Only contention advanced appears to have be as to the time sought and granted by the Court. However, it does not appear that the preliminary objection was either raised or waived at that stage. In any case, the matter has remained on the fresh list and the Court cannot act unmindful on the statutory provisions and the conduct of the parties. Here, the assessment order is dated 24.12.2019. The revision itself was filed on 17.12.2020 and the writ petition has been filed six months thereafter in June, 2021. The alternate remedy had already been availed before the writ petition came to be filed. Therefore, notwithstanding the fact that such preliminary objection had not been raised on the first hearing, the court cannot ignore on the admitted fact that before approaching the Court, the petitioner had already availed the statutory remedy of revision. To entertain such a writ petition would also affect the ..... X X X X Extracts X X X X X X X X Extracts X X X X
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