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2016 (7) TMI 1538 - HC - Income TaxMaintainability 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.
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