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TMI Blog2024 (12) TMI 122X X X X Extracts X X X X X X X X Extracts X X X X ..... ed by the departmental authorities that the appeal before the Appellate Authority is not efficacious and will not provide adequate relief as prayed for by that forum. It appears from the facts urged that the only reason for approaching this Court is to evade payment of the statutory deposit which is prescribed under the Act while preferring the appeal. Such attempt may be made by the petitioner cannot be permitted, more particularly in the manner sought to be done by taking recourse to filing a writ petition before this Court during the pendency of the statutory appeal already filed by the petitioner. Section 249 (4) prescribes that where an appeal is filed before the Appellate Authority it shall not be entertained unless the Assessee has paid the tax due on the income return by him wherein return is filed and where no returns are filed the Assessee shall pay an amount equal to the amount of tax payable by him. Any application that may be filed by the petitioner will necessarily be required to be considered appropriately in terms of the proviso to Section 249 (4) of the Income Tax Act and pass appropriate orders. The contentions raised by the writ petitioner before this Court can a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the appeal where no order has been passed, writ petition is not maintainable and the same should, therefore, be dismissed as it is devoid of any merit. 5. Learned counsels for the parties have been heard and pleadings have been carefully perused. 6. The Department has also filed the affidavit and submitted that the appeal is pending and during the pendency of the appeal the writ petition ought not be entertained. 7. Learned counsel for the petitioner on the other hand also urges before the Court that the petitioner is an indigenous person belonging to a declared Scheduled Tribe of the State of Nagaland, namely Khiamniungan (Naga) Tribe. He submits that the petitioner is a permanent resident of Noklak who is working for profit in the business of Hardware and Food-grains. The learned counsel for the petitioner has also referred to the certificate of Scheduled Tribe issued by the Additional Deputy Commissioner, Noklak. It is submitted that the petitioner is exempted from payment of Income Tax under Section 10(26) of the Income Tax Act. Learned counsel, therefore, submits that the assessment in the first place ought not to have been proceeded against the petitioner as he is a member of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e may be made to the Judgment of the Apex Court rendered in Chhabil Dass Agarwal, reported in (2014) 1 SCC 603. In this case the Apex Court, while dealing with a judgment of a High Court interfering with the Assessment Order instead of filing the statutory remedy of a statutory appeal before the prescribed Appellate Authority in the appeal preferred by the Department, the Apex Court after referring to the earlier judgments of the Apex Court had authoritatively held that the High Court will not entertain a petition under Article 226 of the Constitution if an effective alternative remedy is available to the aggrieved person or the constitution under which the action complained of has been taken itself contains the mechanism for redressal of grievance. The Apex Court held that a remedy before the constitutional court in the form of a writ is certainly available if the available alternative remedy is ineffectual and none efficacious. The relevant paragraphs of the Judgment are extracted below:- 11. Before discussing the fact proposition, we would notice the principle of law as laid down by this Court. It is settled law that non entertainment of petitions under writ jurisdiction by the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t therefore act as a court of appeal against the decision of a court or tribunal, to correct errors of fact, and does not by assuming jurisdiction under Article 226 trench upon an alternative remedy provided by statute for obtaining relief. Where it is open to the aggrieved petitioner to move another tribunal, or even itself in another jurisdiction for obtaining redress in the manner provided by a statute, the High Court normally will not permit by entertaining a petition under Article 226 of the Constitution the machinery created under the statute to be bypassed, and will leave the party applying to it to seek resort to the machinery so set up. 13. In Titaghur Paper Mills Co. Ltd. v. State of Orissa, (1983) 2 SCC 433 this Court observed: (SCC pp. 440-41, para 11) 11. It is now well recognised that where a right or liability is created by a statute which gives a special remedy for enforcing it, the remedy provided by that statute only must be availed of. This rule was stated with great clarity by Willes, J. in Wolverhampton New Waterworks Co. v. Hawkesford, 141 ER 486 in the following passage: (ER p. 495) There are three classes of cases in which a liability may be established foun ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e of alternative remedy, i.e., where the statutory authority has not acted in accordance with the provisions of the enactment in question, or in defiance of the fundamental principles of judicial procedure, or has resorted to invoke the provisions which are repealed, or when an order has been passed in total violation of the principles of natural justice, the proposition laid down in Thansingh Nathmal case, Titagarh Paper Mills case and other similar judgments that the High Court will not entertain a petition under Article 226 of the Constitution if an effective alternative remedy is available to the aggrieved person or the statute under which the action complained of has been taken itself contains a mechanism for redressal of grievance still holds the field. Therefore, when a statutory forum is created by law for redressal of grievances, a writ petition should not be entertained ignoring the statutory dispensation. 16. In the instant case, the Act provides complete machinery for the assessment/re-assessment of tax, imposition of penalty and for obtaining relief in respect of any improper orders passed by the Revenue Authorities, and the assessee could not be permitted to abandon t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the tax due on the income return by him wherein return is filed and where no returns are filed the Assessee shall pay an amount equal to the amount of tax payable by him. However, there is a proviso that upon an application made by the appellant before the Joint Commissioner (Appeals) or the Commissioner (Appeals) as the case may be for any good and sufficient reasons be recorded he may be exempted from the operation of the provisions of that case. As such, the statute provides for filing an application for exemption of payment of tax before the appeal can be heard. The petitioner is entitled to take recourse to that if so advised. Any application that may be filed by the petitioner will necessarily be required to be considered appropriately in terms of the proviso to Section 249 (4) of the Income Tax Act and pass appropriate orders. The contentions raised by the writ petitioner before this Court can also be raised before the Appellate Authority which is presently in seisin of the matter. The petitioner is granted liberty to file necessary applications before the Commissioner, Income Tax Appeal, raising all grounds to assail the Assessment Order dated 31.03.2022 before the Commiss ..... X X X X Extracts X X X X X X X X Extracts X X X X
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