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2019 (9) TMI 390 - HC - Income TaxQuestion of law or facts - Jurisdiction of writ - Invoking Section 144C - rate of tax payable by writ petitioner assessee is 20% and not 10% - whether Tribunal was right in holding that the provisions of section 144B of the IT Act, 1961 are attracted and the reference to the IAC was in accordance with the provisions of section 144B? - alternate remedy - HELD THAT:- This court after a careful analyse of rival submissions and the case law is convinced that the submission of learned Revenue counsel that Southern Petrochemical [2008 (11) TMI 233 - MADRAS HIGH COURT] case is distinguishable deserves to be accepted for more than one reason, as Southern Petrochemical case turns on section 144B which is different from section 144C which we are now concerned with, more importantly the facts scenario is completely different and the substantial question of law itself makes it clear that answer to substantial question of law is on the facts and circumstances of the case. As far as argument predicated on jurisdictional fact is concerned, jurisdictional fact should be such that, absent a particular fact, the authority should be completely denuded of its powers to make impugned proceedings. This court reminds itself that unlike Southern Petrochemical case which is a regular tax case appeal, this is a case under writ jurisdiction wherein there is no disputation that writ petitioner has an alternate remedy. Therefore, jurisdictional fact should be so striking that it strikes at the very root of the exercise of the power by the authority making the impugned order. There is further discussion regarding alternate remedy in the latter part of this order infra. Be that as it may, suffice to say that this court is unable to convince itself that (from a reading of the language in which section 144C of IT Act is couched) respondent is completely denuded of powers to make draft and final assessment orders in cases where the rate at which tax is to be paid by the assessee is put in issue Period of limitation - A perusal of the manner in which limitation plea has been projected or in other words, challenge to the impugned draft and final assessment orders insofar as it is predicated on limitation plea is concerned, it comes out clearly that it is a mixed question of fact and law. It is not a pristine question of law. The aforesaid manner in which limitation plea has been articulated by writ petitioner in the affidavit filed in support of the writ petition is clearly subjected to disputation and disagreement by revenue. Therefore, this court has no hesitation in holding that on the facts and circumstances of the instant case, as the plea of limitation turns on facts and as it is clearly not a pristine question of law and as it at best qualifies as mixed question of law and facts, it would be appropriate to not to decide facts in a writ petition and leave it to appellate authority to decide on facts Alternate remedy rule is not an absolute rule. Though alternate remedy rule is not an absolute rule, in a long line of authorities, Hon’ble Supreme Court has repeatedly held that alternate remedy shall be exercised in cases of (a) absence of jurisdiction, (b) violation of principles of natural justice, and (c) order being passed disregarding well settled laws of land, etc., To be noted, this is not a comprehensive list, but only an illustrative list which is set out only for the limited purpose of appreciating this instant order. Owing to all that have been set out thus far, this court does not find any ground to interfere with the impugned orders in writ jurisdiction.
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