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TMI Blog2025 (1) TMI 825X X X X Extracts X X X X X X X X Extracts X X X X ..... decline to entertain this Petition. However, we leave it open to the Petitioner to avail the alternate remedy of appeal by clarifying that we have not examined the rival contentions on merits. If the Petitioner does institute an appeal, the Appellate Authority must note that the Petition was filed on 10 April 2024 and has been pending in this Court to date. - M.S. SONAK JITENDRA JAIN, JJ. For the Petitioner: Mr. J D Mistri, Senior Advocate, a/w Mr. B V Jhaveri and Ms Bhargavi Raval. For the Respondents: Mr Akhileshwar Sharma,. JUDGMENT (PER M. S. SONAK, J.) 1. Heard learned counsel for the parties. 2. The Petitioner seeks the following substantive reliefs in terms of prayer clauses (a) to (c):- (a) that this Hon ble Court may be pleased to issue a writ of certiorari or a writ in the nature of certiorari or any other appropriate writ, order or direction under Article 226 of the Constitution of India calling for the records of the case leading to the issue of the Show cause Notice dated 21st February, 2024 (Ex. F ) and the assessment order u/s. 143 (3) r.w.s.144B of the Act, dated 21st March, 2024 along with the Notice of Demand u/s. 156 of the Act dated 21st March, 2024 (Ex. J ) ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... y the writs, orders or directions prayed for in this Petition will be complete. 5. Mr. Mistri, the learned Senior Advocate for the Petitioner, submitted that the alternate remedy, in the peculiar facts of the present case, is not efficacious. Therefore, the Petitioner should not be relegated to avail of such alternate remedy. Mr. Mistri submitted that the impugned assessment order seeks to bring to tax the income already declared and accepted in the assessment for the Assessment Year 2023-24. He submitted that any attempt to assess and tax income already assessed and taxed in the Assessment Year 2023-24 is an exercise without jurisdiction. In such circumstances, he submitted that the bar of alternate remedy cannot apply. 6. Mr. Mistri submitted that there is ample material on record which establishes that the Petitioner has been following the Project Completion Method of Accounting for the last several years. He submitted that for the Assessment Years 2015-16, 2018-19 and 2023-24, specific queries were raised about why the Petitioner was not adopting the Percentage of Completion Method. After considering the Petitioner s response, the assessments were completed for the said years b ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... as well be raised before the Appellate Authority. In fact, it is only appropriate for such contentions to be raised and considered by the Appellate Authority. Otherwise, practically in every matter, based on the Petitioner s assessment that he has an open and shut case, the Petitioner will insist on bypassing the statutory /ordinary remedies and invoking the extraordinary remedy under Articles 226 and 227 of the Constitution. This court, then, is routinely called upon to exercise appellate jurisdiction in such matters. 15. Besides, in this case, we do not appreciate the pleadings in paragraphs 19 and 20 of the Petition transcribed by us above, where the Petitioner boldly states that it has no alternate or efficacious remedy or that there is no forum but this Court to redress the Petitioner s grievances. At best, the Petitioner should have acknowledged that it has an alternate remedy and attempted to bring its case within the well-settled exceptions by proper pleadings. However, a bald statement that the Petitioner has no other alternate, adequate or efficacious remedy or that there is no forum but this Court to redress the Petitioner s grievances is improper. All kinds of arguments ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... risdiction. There is a distinction between a wrong order and an order without jurisdiction. At least in this case, we are not satisfied that the impugned order falls in the category of wholly without jurisdiction . 21. Applying binding precedents is also required by comparing the facts in the present case and the facts involved in the cited decisions. It is well known that even a slight difference in the facts can make a difference. At this stage, we do not wish to make any observations on the merits of the contentions raised by Mr Mistri or on the decisions he relies upon. However, we note that the decisions in Aditya Builders (supra) and Quest Investment Advisors Pvt. Ltd. (supra) were rendered in Appeals under Section 260A of the IT Act, where the lower appellate authorities had threadbare analysed all the factual aspects involved. The scope of an appeal under Section 260 A is also peculiar and distinct from a petition seeking judicial review. 22. If the grounds in the Petition are perused, then the Petitioner has alleged that neither the provisions of Section 43CB of the Act nor ICDS III IV apply to the facts of the Petitioner as the business of the Petitioner is not that of co ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... to depart from the usual practice of exhaustion of alternate remedies and entertain this Petition. 26. Recently, in The State of Maharashtra and Others V/s. Greatship (India) Limited 2022 LiveLaw (SC) 784, the Hon ble Supreme Court, after referring to its earlier precedents on the subject, held that Article 226 is not meant to short-circuit or circumvent statutory procedures. It is only where statutory remedies are entirely ill-suited to meet the demands of extraordinary situations, for instance, where the very vires of the statute is in question or where private or public wrongs are so inextricably mixed up, and the prevention of public injury and the vindication of public justice require it that recourse may be had to Article 226 of the Constitution. But even then, the Court must have good and sufficient reason to bypass the alternative remedy provided by statute. Surely, matters involving the revenue where statutory remedies are available are not such matters. 27. The Court, after referring to its earlier precedent in United Bank of India V/s. Satyawati Tondon and Others (2010) 8 SCC 110 observed that we can also take judicial notice of the fact that the vast majority of the pe ..... X X X X Extracts X X X X X X X X Extracts X X X X
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