2016 (7) TMI 1538 - HC - Income Tax

Maintainability of writ petition - petitioner seeks to question the demand notice as issued by the respondent No.5-Assistant Commissioner of Income Tax Shillong for recovery of the dues pursuant to the Assessment Order under Section 143 (3) - HELD THAT - Seeking to question the aforesaid demand notices this writ petition was filed way back on 07.12.2015. This petition came up before a Division Bench of this Court on 11.12.2015 when it was ordered to be listed before another Bench. Thereafter this petition remained pending and was listed only on 04.07.2016 before us when a request for adjournment was made on the ground that the arguing counsel for the petitioner was not available in town. Thereafter the petition has come up today. 5. It rather surprising that although this writ petition has never been entertained and the respondents have never been called upon to answer yet the respondents No.1 to 5 have chosen to file a detailed affidavit-in-opposition seeking to justify the Assessment Order as also the demand notices in question. 6. Leaving the aforesaid uncalled for affidavit-in-opposition aside we have queried the learned counsel for the petitioner that when an appeal has admittedly been filed why the petitioner has not chosen to prosecute the remedy already taken recourse of and not sought the appropriate relief in the appellate forum in accordance with law. Only an uncertain response is forthcoming to our queries that the Commissioner of Appeals was not regularly sitting at Shillong. In this regard it is informed by the counsel for the respondent-department that in fact the appeal filed by the petitioner has already been posted for consideration on 10.08.2016. Referring to directions and observations of the Hon ble Supreme Court in ITC LTD. 1990 (8) TMI 173 - SUPREME COURT and TODI INDS. LTD. 1998 (11) TMI 133 - SC ORDER if applied with relevant contextual variation to the present case could only result in leaving it open for the petitioner to make appropriate prayer before the appellate authority in an appropriate manner and in accordance with law. Even at the cost of the repetition we cannot help reiterating that when the petitioner had already filed an appeal against the Assessment Order in question any prayer against the demand arising from the impugned order of the Assessing Authority ought to have been made only before the Appellate Authority concerned. No reason to entertain this writ petition.

Summary

Issues:
Challenge to demand notices under Income Tax Act, 1961 for recovery of dues pursuant to Assessment Order for Assessment year 2012-2013.

Analysis:
The judgment by the High Court of Meghalaya dealt with a writ petition challenging demand notices issued by the Assistant Commissioner of Income Tax for recovery of dues under the Income Tax Act, 1961. The petitioner sought to question the demand notices dated 09.11.2015 and 19.11.2015, issued for recovery of outstanding amount against the petitioner-Institution pursuant to the Assessment Order under Section 143(3) for the Assessment year 2012-2013. The petitioner had filed an appeal before the Commissioner of Income Tax (Appeals) against the Assessment Order and requested to keep the demand in abeyance until the appeal's disposal. However, the Assistant Commissioner later called for partial payment, leading to the writ petition challenging the demand notices.

The court noted that despite the writ petition not being entertained, the respondents filed a detailed affidavit-in-opposition justifying the Assessment Order and demand notices. The court queried why the petitioner had not pursued the remedy of appeal already filed instead of seeking relief through the writ petition. The petitioner cited Supreme Court orders to request protection until the appeal hearing, but the court found no merit in the argument, emphasizing that the appeal process should be followed.

The judgment referenced previous Supreme Court cases where the court declined to entertain petitions under Article 136 of the Constitution, emphasizing the importance of pursuing remedies through the appellate authority. The court highlighted that the cited Supreme Court orders did not favor the petitioner's case, as the appeal had already been filed before the writ petition. The court emphasized that any prayer against the demand should have been made before the Appellate Authority concerned, and there was no basis to entertain the writ petition.

In conclusion, the High Court of Meghalaya declined the exercise of writ jurisdiction and summarily dismissed the writ petition, emphasizing that the petitioner should pursue remedies through the appropriate appellate authority. The judgment underscores the importance of following the prescribed legal procedures and exhausting available remedies before seeking judicial intervention.