The Tax Publishers2020 TaxPub(DT) 4622 (Mad-HC)

INCOME TAX ACT, 1961

Article 226 Section 143(3)

The grounds raised in the present writ petitions were some of the exceptions for maintaining a writ petition without availing the alternate remedy and hence, the petitioner can maintain the writ petitions without availing the statutory appeal remedy.

Writ - Maintainability - Existence of alternative remedy -

In these writ petitions, the preliminary issue was raised by the respondent on the maintainability of the writ petitions, on the ground of non-availment of the alternate statutory appeal remedy. Held: The rule of exclusion of writ jurisdiction by availability of an alternative remedy, is a rule of discretion, and not one of compulsion and there could be contingencies in which the jurisdiction under article 226 of the Constitution of India could be exercised in spite of availability of an alternative remedy. The question to be decided was relating to the jurisdiction, manner of exercise of power by the AO and the correctness and propriety of the decision making process and whether principles of natural justice was adhered to. Therefore, it was held that Writ Petitions were maintainable and cannot be rejected solely on the ground that as against the impugned assessment orders, the statute provides for alternate remedy. The grounds raised in the present writ petitions were some of the exceptions for maintaining a writ petition without availing the alternate remedy and hence, the petitioner can maintain the writ petitions without availing the statutory appeal remedy.

Followed:Nokia India Private Ltd. v. Dy. CIT (CT)-IV (2015) 79 VST 137 (Mad), (2003) 2 SCC 107 Harbanslal Sahnia v. Indian Oil Corporation Ltd. (2001) 10 SCC 491, Modern Steel Industries v. State of U.P. (2010) 3 SCC 321, Hindustan Petroleum Corporation Limited v. Super Highway Services (2009) 14 SCC 451 and National Sample Survey Organization v. Champa Properties Limited as well as (1998) 8 SCC 1

REFERRED :

FAVOUR : In assessee/petitioner's favour.

A.Y. :


INCOME TAX ACT, 1961

Section 32(1)

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