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Dr. K. Nedunchezhian Vs. the Deputy Commissioner of Income-tax and the Commissioner of Income-tax - Court Judgment

LegalCrystal Citation
SubjectDirect Taxation
CourtChennai High Court
Decided On
Case NumberW.A. Nos. 453 and 454 of 2005
Judge
Reported in2005(4)CTC161; (2005)199CTR(Mad)432; [2005]279ITR342(Mad)
ActsIncome Tax Act, 1961 - Sections 158BC, 246 and 251; Motor Vehicles Act; Uttar Pradesh Trade Tax Act - Sections 9; Finance Act, 2001; Constitution of India - Article 226
AppellantDr. K. Nedunchezhian
RespondentThe Deputy Commissioner of Income-tax and the Commissioner of Income-tax
Appellant AdvocateG. Rajagopalan, Sr. Counsel for G.R. Associates
Respondent AdvocateRavikumar, Adv.
DispositionAppeal dismissed
Cases ReferredIn Titaghur Paper Mills Co. Ltd. v. State of Orissa
Excerpt:
.....titaghur paper mills co. 6. it is well settled that when there is an alternative remedy ordinarily writ jurisdiction of this court under article 226 of the constitution should not be invoked. but, then the court must have good and sufficient reason to by pass the alternative remedy provided by statute. verma, the supreme court held that it is well settled that when an alternative and equally efficacious remedy is open to a litigant, he should be required to pursue that remedy and not invoke the special jurisdiction of the high court to issue a prerogative writ. it will be a sound exercise of discretion to refuse to interfere in a petition under article 226 of the constitution unless there are good grounds to do otherwise. however, the power in the appellate authority of deciding the..........india limited, , etc.6. it is well settled that when there is an alternative remedy ordinarily writ jurisdiction of this court under article 226 of the constitution should not be invoked. this principle applies with greater force regarding tax proceedings. as observed by the supreme court in titaghur paper mills co. ltd. v. state of orissa, :'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.'7. a constitution bench of the supreme court in g. veerappa pillai v. raman and raman ltd., held that as the motor vehicles act is a self contained code and itself provides for a forum for appeal/revision, the writ jurisdiction should not be invoked in matters relating to its provisions. a.....
Judgment:

Markandey Katju, C.J.

1. These are two connected writ appeals and are being disposed off by a common judgment. Heard the learned senior counsel for the appellant and the learned departmental counsel.

2. The appellant had first filed a writ petition challenging the assessment notice under section 158BC of the Income-tax Act, 1961. That writ petition being W.P. No. 38648 of 2004 was dismissed on 7.2.2005 on the ground that assessment order has already been passed on 29.12.2004 and the writ petition challenging that assessment order being W.P. No. 1725 of 2005 has also been dismissed o n 27.1.2005.

3. W.P. No. 1725 of 2005 had been dismissed by the learned single Judge on the ground that since the assessment order has been passed the petitioner has an alternative remedy of filing an appeal under section 246 read with section 251 of the Income-tax Act. We agree with the view taken by the learned single Judge that the appellant has an efficacious alternative remedy of filing an appeal.

4. In W.A. No. 377 of 2005 dated 2.3.2005 (M/s. Nivaram Pharma Pvt. Ltd. v. The Customs, Excise & Gold (Control) Appellate Tribunal, Madras) we have discussed this matter in great detail and have observed that particularly in tax matters there should be no short circuiting of the alternative statutory remedies as has been repeatedly emphasized by the Supreme Court.

5. It is well settled by a series of decisions of the Supreme Court that particularly in tax matters there should be no short circuiting of the statutory remedies, vide Titaghur Paper Mills Co. Ltd. V. State of Orissa, , Assistant Collector of Central Excise, Chandan Nagar V. Dunlop India Limited, , etc.

6. It is well settled that when there is an alternative remedy ordinarily writ jurisdiction of this Court under Article 226 of the Constitution should not be invoked. This principle applies with greater force regarding tax proceedings. As observed by the Supreme Court in Titaghur Paper Mills Co. Ltd. V. State of Orissa, :

'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.'

7. A Constitution Bench of the Supreme Court in G. Veerappa Pillai V. Raman and Raman Ltd., held that as the Motor Vehicles Act is a self contained code and itself provides for a forum for appeal/revision, the writ jurisdiction should not be invoked in matters relating to its provisions. A similar view was taken in Assistant Collector of Central Excise, Chandan Nagar V. Dunlop India Limited, .

8. In Assistant Collector of Central Excise, Chandan Nagar V. Dunlop India Limited (supra) the Supreme Court observed:

'In Titaghur Paper Mills Co. Ltd. V. State of Orissa, A.P. Sen, E.S. Venkataramiah and R.B. Misra, JJ. held that where the statute itself provided the petitioners with an efficacious alternative remedy by way of an appeal to the Prescribed Authority, a second appeal to the Tribunal and thereafter to have the case stated to the High Court, it was not for the High Court to exercise its extraordinary jurisdiction under Article 226 of the Constitution ignoring as it were, the complete statutory machinery. That it has become necessary, even now, for us to repeat this admonition is indeed a matter of tragic concern to us. 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, as 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 Art.226 of the Constitution. But, then the Court must have good and sufficient reason to by pass the alternative remedy provided by statute. Surely, matters involving the revenue where statutory remedies are available are not such matters. We can also take judicial notice of the fact that the vast majority of the petitions under Art.226 of the Constitution are filed solely for the purpose of obtaining interim orders and thereafter prolong the proceedings by one device or the other. The practice certainly needs to be strongly discouraged.'

9. In C.A. Ibrahim v. ITO, , H.B. Gandhi v. M/s. Gopinath & Sons, 1992 (Suppl) 2 SCC 312 and in Karnatak Chemical Industries v. Union of India, the Supreme Court held that where there is a hierarchy of appeals provided by the statute the party must exhaust the statutory remedies before resorting to writ jurisdiction. All these decisions are related to taxing statutes, and are hence apposite to the present context.

10. In Sheela Devi v. Jaspal Singh, and Punjab National Bank v. D.C. Krishna, the Supreme Court held that if the statute provides for remedy of revision or appeal, writ jurisdiction should not be invoked.

11. In Union of India v. T.R. Verma, the Supreme Court held that it is well settled that when an alternative and equally efficacious remedy is open to a litigant, he should be required to pursue that remedy and not invoke the special jurisdiction of the High Court to issue a prerogative writ. It will be a sound exercise of discretion to refuse to interfere in a petition under Article 226 of the Constitution unless there are good grounds to do otherwise.

12. In A. Venkatasubbiah Naidu v. S. Chellappan, the Supreme Court deprecated the practice of exercising the writ jurisdiction when an efficacious alternative remedy is available.

13. In W.P. No. 981 of 2003 (Tax) (M/s. Khandelwal Soya Industries Ltd. v. State of U.P. and Ors.) decided on 27.8.2003 a Division Bench of the Allahabad High Court dismissed a writ petition challenging the provisional assessment orders under the U.P. Trade Tax Act on the ground of alternative remedy under section 9 of that Act. Against the aforesaid judgment, Special Leave Petition was filed before the Supreme Court which has been dismissed. We respectfully agree with the view taken by the Allahabad High Court in the aforesaid decision.

14. Learned senior counsel for the appellant submitted that section 251 of the Income-tax Act has been amended by Finance Act, 2001 and now there is no power in the Commissioner (Appeals) to remand the matter back to the Assessing Officer. In our opinion, that will not make any difference to this case because obviously what the legislature intended was that there should be no delay in the matter, and hence the appellate authority itself should dispose of the entire matter on merits instead of remanding the matter to the Assessing Officer. However, the power in the appellate authority of deciding the entire matter remains intact and is not in any way taken away by the aforesaid amendment by the Finance Act, 2001. It is well settled that the appellate power includes all the powers of the original authority and hence the appellant can raise all the points which he is urging before us in both these writ appeals before the appellate authority in his appeal under section 246/251 of the Income-tax Act.

15. We may also mention that we have already held in Tamilnadu State Transport Corporation v. C. Durai and Anr., 2005 W.L.R. 136 that even if there is violation of natural justice or the order is without jurisdiction, the writ petition can still be dismissed if there is an alternative remedy, and we have distinguished the Supreme Court decision in Baburam v. Zila Parishad, in that case.

16. In Titaghur Paper Mills Co. Ltd. v. State of Orissa, the appellant had pleaded that there was violation of natural justice, and the impugned order was without jurisdiction. Yet the Court held that the petitioner should avail his alternative remedy of appeal.

17. With these observations both the writ appeals are dismissed. No costs. Consequently W.A.M.P. No. 819/2005 is also dismissed.


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