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Manoharrao Narsingrao Heble Vs. Union of India and anr. - Court Judgment

LegalCrystal Citation
SubjectDirect Taxation
CourtMumbai High Court
Decided On
Case NumberWrit Petn. No. 1230 of 1981
Judge
Reported in(1984)38CTR(Bom)216; [1985]151ITR304(Bom); [1983]15TAXMAN591(Bom)
Acts Income Tax Act, 1961 - Sections 13(1), 23(1) and 23(3)
AppellantManoharrao Narsingrao Heble
RespondentUnion of India and anr.
Excerpt:
.....income tax act, 1961 and article 226 of constitution of india - high court is slow in exercising writ jurisdiction under article 226 when litigant has alternative efficacious remedy - only in exceptional cases that high court exercises writ jurisdiction inspite of there being alternative remedy - in instant case assessee had alternative remedy of appeal under section 246 instead of filing writ petition under article 226 - court declined to exercise jurisdiction so as to enable petitioner to file appeal as proper remedy under section 246. - - in my judgment, the submission of the petitioner is clearly misconceived. it is now well settled that the high court will be slow in exercising writ jurisdiction u/art 226 of the constitution when the litigant has alternative efficacious..........is clearly misconceived. it is now well settled that the high court will be slow in exercising writ jurisdiction u/art 226 of the constitution when the litigant has alternative efficacious remedy. it is undoubtedly true that the high court has jurisdiction u/art 226 of the constitution to grant relief even when there is an alternative remedy, but the high court is always slow in exercising that jurisdiction and it is only in exceptional cases that the writ jurisdiction is exercised in spite of there being an alternative remedy.3. the ld. counsel for the revenue in this connection invited my attention to decision of the supreme court reported in : [1983]142itr663(sc) (titaghur paper mills co. ltd. & anr. v. state of orissa and anr.) where the supreme court observed wile considering.....
Judgment:

M.L. Pendse, J.

1. By this petition filed u/Art 226 of the Constitution of India, the petitioner is seeking a writ of certiorari or any other writ to quash the order of assessment dt. 24-2-1981 passed by the 7th ITO, P-Circle, Bombay. The petitioner is occupying a flat on the 6th floor of the building 'Atur Terraces', situate at 19th Cuffe Parade, and for the asst. yr. 1978-79 the petitioner filed his return and in the return the property income from this flat was not shown. The ITO, while passing the impugned order, set out the contentions of the petitioner that he is neither the owner of the flat nor can be deemed to be the owner and rejected the contention holding that the income from the house property is assessable to tax.

2. The ld. counsel on behalf of the revenue raised a preliminary objection to the maintainability of the petition, submitting that the petitioner had efficacious alternative remedy provided under the IT Act. The petitioner could prefer an appeal u/s 246 of the IT Act before the Asstt. Commissioner, and if aggrieved, further appeal to the Commissioner and then to the Tribunal. The ld. counsel submits that it is not proper for this Court to entertain the petition by permitting the petitioner to challenge the order of the ITO without exhaustion of alternate remedy. In my judgment, the preliminary objection raised on behalf of the respondents is sound and deserves to be upheld. The petitioner, who appeared in person and who is an Advocate of this Court, invited my attention to page 836 of Constitution of India by Mr. Seervai, Second Edn. Vol. II, where the ld. author has summarised the proposition emerging from the decided cases on the question of alternative remedies. The petitioner argued that the order passed by the ITO is contrary to law or is without authority of law, and, therefore, the writ petition against the said order is maintainable. It was also urged that in respect of writ of certiorari, there is no adequate alternate remedy. The petitioner also relied upon the decision of the Supreme Court in : [1958]1SCR595 State of Uttar Pradesh v. Mohammad Nooh, and (1964) 1 SCR 418 Bhopal sugar Industries Ltd. v. D. P. Dube, STO. In the later decision, which was under the provisions of the ST ACT, the Supreme Court observed :

'It is true that the jurisdiction of the High Court under Art. 226 is extensive, but normally the High Court does not exercise that jurisdiction by entertaining petitions against the orders of taxing authorities, when the statute under which tax is sought to be levied provides a remedy by way of an appeal or other proceedings to a party aggrieved and thereby by pass the statutory machinery. That is not to say that the High Court will never entertain a petition against the order of the taxing officer. The High Court has undoubtedly jurisdiction to decide whether a statute under which a tax is sought to be levied is within the legislative competence of the Legislature enacting it or whether the statute defies constitutional restrictions or infringes any fundamental rights, or whether the taxing authority has arrogated to himself power which he does not posses, or has committed a serious error of procedure which has affected the validity of his conclusion or even where the taxing authority threatens to recover tax on an interpretation of the statute which is erroneous.'

The petitioner claims that the ITO has not only passed the impugned order rejecting the claim of the petitioner, but the tax found due was adjusted with the refund which the petitioner was entitled to, and, therefore, the present case falls within the category of cases set out by the Supreme Court decision and the petitioner can claim that the taxing authority had threatened to recover tax on interpretation of the statute which is erroneous. In my judgment, the submission of the petitioner is clearly misconceived. It is now well settled that the High Court will be slow in exercising writ jurisdiction u/Art 226 of the Constitution when the litigant has alternative efficacious remedy. It is undoubtedly true that the High Court has jurisdiction u/Art 226 of the Constitution to grant relief even when there is an alternative remedy, but the High Court is always slow in exercising that jurisdiction and it is only in exceptional cases that the writ jurisdiction is exercised in spite of there being an alternative remedy.

3. The ld. counsel for the revenue in this connection invited my attention to decision of the Supreme Court reported in : [1983]142ITR663(SC) (Titaghur Paper Mills Co. Ltd. & Anr. v. State of Orissa and Anr.) where the Supreme Court observed wile considering whether the High Court was right in exercising writ jurisdiction u/Art 226 of the Constitution in regard to an order of assessment passed under the ST Act. as follows :

'That the Act provided for a complete machinery to challenge an order of assessment and the orders of assessment in this case could be challenged only by the mode prescribed by the Act and not by a petition under Art. 226 of the Constitution of India. The Act provided for an adequate safeguard against an arbitrary or unjust assessment. The petitioners had a right to prefer appeals under s. 23(1), subject to their payment of the admitted amount of tax as enjoyed by the proviso thereto, and as regards the disputed amount of tax they had the remedy of applying for stay of recovery to the Commissioner under cl. (a) of the second proviso to s. 13(1).'

'That the petitioners had an equally efficacious alternative remedy by way of appeal to the prescribed authority under appeal to the prescribed authority under s. 23(1) of the Act, then, a second appeal to the Tribunal under s. 23(3) and thereafter to have a case stated to the High Court. This was a case in which the entrustment of power to assess was not in dispute and the challenge was only to the regularity of the proceeding before the STO as also his authority to treat the gross turnover returned to be the taxable turnover.'

The reliance on this decision by the learned counsel for the revenue is appropriate. It is not in dispute that the ITO has jurisdiction to pass the impugned order, and what the petitioner complains is that order is incorrect or is in contravention of the provisions of law. This is not a case of total lack of jurisdiction and therefore the petitioner is bound to adopt remedy of filing an appeal.

4. A faint attempt was made to urge that the ITO has not given any reasons for his conclusion and as laid down by the Supreme authority to give reasons in support of the conclusion and more so when an appeal is provided and, therefore, the order should be quashed in writ jurisdiction. I am not impressed by the submission, because it is open for the appellate authority to consider the material on record and pass appropriate order.

5. A reference was also made to my decision reported in 1982 Mah L.J. 732 Shardaben Mafatlal and Ors. v. V. N. Karandikar and Anr. where sitting in a Division Bench had observed that there is no hard and fast rule that the High Court will not entertain the petition u/Art 226 of the Constitution, when there is a remedy of appeal available to a litigant. In that decision, we declined to drive the litigant to file an appeal for several circumstances, and we had not concluded, as now claimed by the petitioner, that in every case where the petition is admitted and pending in this court for two years, the litigant should not be given to file an appeal. It was also urged by the petitioner that the ld. single Judge, who admitted the petition, was satisfied about the maintainability of the petition, and, therefore, I should not decline to grant relief to the petitioner by upholding the preliminary objection. There is no merit in this sub-mission, because there is no speaking order of the ld. Judge at the stage of admission and it is impossible to conceive how the respondents could be concluded from raising preliminary objection merely because the ld. single Judge admitted the petition. In my judgment, the proper remedy of the petitioner is to file an appeal and on this ground I decline to exercise my jurisdiction and dismiss the petition.

6. Accordingly, rule is discharged with costs.


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