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TMI Blog2025 (1) TMI 38X X X X Extracts X X X X X X X X Extracts X X X X ..... hrough the order impugned and found therefrom that the order is not cryptic, rather it is a detailed order basis upon the documents which were assessed/scrutinized by the Assessing Officer and basis upon the same, the assessment order was made, but when subsequently it was found that the disclosure of the documents needs to be statement in the income tax which is also based upon the material document which led the revenue to issue notice. It is, thus, evident from the impugned order that the said order is not a cryptic one, rather it is a detailed order on consideration of the rival submissions of the parties based upon the appreciation of the documents. This Court is of the view that in such a factual aspect where the assessment order is being disputed by the petitioner on fact, then it will not be proper for this Court to exercise its extraordinary jurisdiction conferred under Article 226 of the Constitution of India in a situation where the effective alternative remedy of appeal is available under Section 246A of the Income Tax Act, 1961. However, it is left open for the petitioner to avail the alternative remedy as provided under Section 246A of the Income Tax Act, 1961. - HO ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... especially in view of the fact that the same has been passed by making additions to the income of the Assessee on the grounds which already stood concluded vide Assessment Order dated 28.12.2017, and by making further additions without giving proper opportunity of hearing to the Petitioner. 3) Ms. Lavanya Gadodia, learned counsel appearing for the petitioner, has prayed for adjournment of the case. 4) However, adjournment of the case has seriously been objected by the learned counsel for the Revenue on the ground that revenue to the tune of Rs. 27,44,100/- is involved in this matter and the petitioner is enjoying interim relief since 09.10.2023. 5) Mr. Kumar Vaibhav, learned counsel appearing for the Revenue, has further submitted that the writ application itself is not maintainable on the ground of availability of alternative remedy of appeal under Article 246 of the Income Tax Act, 1961. The learned counsel in order to fortify his argument has relied upon the judgment rendered in the case of Commissioner of Income Tax and others Vs. Chhabil Dass Agarwal, (2014) 1 SCC 603. 6) Thereupon, Ms. Lavanya Gadodia, learned counsel for the petitioner, has submitted that the writ petition i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... l the remedy of appeal, reason being that if the order itself is a nullity in the eye of law then why the party will be relegated to the appellate forum, rather than giving him a declaration of the order said to be the nullity due to the jurisdictional error. 14) So far as the change of opinion is concerned, the same, according to our considered view, cannot be said to be a jurisdictional issue, rather, the same is only be said to be a factual dispute depending upon the facts and circumstances upon which the litigants are relying. Therefore, the change in opinion cannot be said to be a jurisdictional issue and, hence, the same cannot be taken into consideration while deciding the maintainability of the writ petition, if the alternative remedy of appeal is available. 15) The reference of the judgment of the Hon ble Apex Court in the case of Techspan India Private Limited (supra) needs to be referred herein as under:- 18. Before interfering with the proposed reopening of the assessment on the ground that the same is based only on a change in opinion, the court ought to verify whether the assessment earlier made has either expressly or by necessary implication expressed an opinion on ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... uently it was found that the disclosure of the documents needs to be statement in the income tax which is also based upon the material document which led the revenue to issue notice. 20) It is, thus, evident from the impugned order that the said order is not a cryptic one, rather it is a detailed order on consideration of the rival submissions of the parties based upon the appreciation of the documents. 21) The Hon ble Apex Court has also considered the scope of Article 226 of the Constitution of India in the case of Chhabil Dass Agarwal (supra), wherein it has been laid down in paragraphs 15 and 16 that on the ground availability of alternative remedy, the law has been reiterated by laying down the rule of alternative remedy that 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 procedures, 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, then only the High Court can exercise jurisdiction under Article 226 of the Constitution of India, but in absence of such eventuali ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e and not a mere formality with no substantial relief. In Ram and Shyam Co. v. State of Haryana [(1985) 3 SCC 267] this Court has noticed that if an appeal is from Caesar to Caesar's wife the existence of alternative remedy would be a mirage and an exercise in futility. 23) This Court taking, into consideration the discussions made hereinabove as also the fact that the provision of appeal as under Section 246A of the Act is available, is of the view that it is not a case where any of the conditions for maintaining the writ petition as has been laid down either in the case of Whirlpool Corpn. (supra) or in the case of Chhabil Dass Agarwal (supra) as also in the case of Thansingh Nathmal Vs. Supt. of Taxes, AIR 1964 SC 1419 , is fulfilled. 24) Accordingly, this Court is of the view that the instant writ petition is not fit to be entertained on the ground of effective alternative remedy available under Section 246A of the Income Tax Act, 1961. 25) Therefore, this Court is of the view that in such a factual aspect where the assessment order is being disputed by the petitioner on fact, then it will not be proper for this Court to exercise its extraordinary jurisdiction conferred und ..... X X X X Extracts X X X X X X X X Extracts X X X X
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