TMI Blog2010 (2) TMI 1069X X X X Extracts X X X X X X X X Extracts X X X X ..... he aforesaid decision, by no means, can be understood to have laid down any law of general application to the effect that once a writ petition is admitted for regular hearing, the same cannot be dismissed or rejected on the ground of maintainability, as asserted by the learned counsel for the petitioner. In the present case the learned single judge had exercised his discretion against the appellant by holding that the appellant (writ petitioner) had accepted the appellate order and had participated in the reassessment proceedings. The learned single judge had also recorded that no explanation had been offered by the appellant (writ petitioner) for not availing of the alternative remedy available to him. In such a situation, it cannot be ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 999 contemplating reopening of the assessments for the year 1993-94 and 1994-95. Pursuant to the said notice the assessments of the petitioner for the two years in question were finalized on March 1, 1999. Aggrieved, the petitioner instituted an appeal wherein it was, inter alia, contended that the reopening of the original assessments was on the basis of audit objections, which could not have been done. The appeal filed by the petitioner was disposed of on August 14, 2000 setting aside the orders of assessment dated March 1, 1999 and by directing the jurisdictional Superintendent of Taxes to assess the petitioner by estimating the sale price on pro rata basis after taking into account the entire bid money spreading over five assessment yea ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the consequential reassessment proceedings and the petitioner having offered no explanation for not availing of the statutory remedy of appeal against the reassessment orders, the learned single judge thought it proper to hold that the writ petition should not be entertained for adjudication on merits. Accordingly, the order of dismissal was passed giving rise to the present appeal. We have heard Shri J. Bora, the learned counsel for the appellant (petitioner) and Shri R. Dubey, the learned standing counsel, Finance. Shri J. Bora, the learned counsel for the appellant (petitioner), has strenuously urged that the writ petition having been heard on merits, the learned single judge could not and ought not to have dismissed the same on t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on of the appellant (writ petitioner) in the consequential reassessment proceedings. Therefore, according to Shri Dubey, learned Departmental counsel, the conduct of the appellant (petitioner) in accepting the appellate order and thereafter turning back from the stand earlier taken should disincline the court, in the exercise of the highly discretionary jurisdiction under article 226 of the Constitution, to afford to the petitioner an adjudication on merits. That apart, according to the learned standing counsel, there is no explanation whatsoever as to why the appellant (writ petitioner) had not exhausted the remedy provided to him by the statute and that no exceptional case has been made out for examination of the reassessment orders on th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... no application in assessing the income of Hirday Narain along with his minor son in the status of an HUF. The Income-tax officer accepted the stand projected in the rectification application but refused to grant any relief to Hirday Narain by changing the status of Hirday Narain from that of an HUF to an individual. The aforesaid change of status was, however, without any notice or opportunity. In the aforesaid facts, the apex court first of all considered the question as to whether there was a second HUF consisting of Hirday Narain and his minor son as held by the Income-tax Officer. In paragraph 10 of the judgment (at page 31 of 78 ITR), the apex court came to the finding, There was in fact an existing Hindu undivided family of which, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e situations the availability of an alternative remedy should not be construed as a bar for entertaining a writ petition, (1) where a writ petition seeks enforcement of any fundamental right(s), (2) where there is violation of the principles of natural justice and (3) where the order or the proceedings are wholly without jurisdiction or the vires of an Act is challenged. In the present case the learned single judge by reference to the records had negatived the contention of the appellant (petitioner) that the reassessment proceedings were without any notice or opportunity to him, inasmuch as, it was conclusively found by the learned judge that notices in the reassessment proceedings had been issued to the appellant (writ petitioner) who ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
