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2021 (5) TMI 450 - HC - Income TaxMaintainability of the writ application - alternative remedy u/s 246A - This Court jurisdiction under Article 226 of the Constitution of India with the assessment order passed by AO under the Income Tax Act when an equal efficacious alternative remedy is available to the writ applicant under Section 246A - HELD THAT:- In view of the law laid down by the Apex Court in the case of Chhabil Dass Agrawal [2013 (8) TMI 458 - SUPREME COURT] this Court cannot overlook the settled law that, ordinarily the writ petition under Article 226 of the Constitution of India ought not to be entertained, if an effective remedy is available, except in case if falls within the well defined exception as observed by the Apex Court in para 15 of the above judgment. We take the notice of the undisputed fact that, the notices under Sections 143(2) and 142(1) of the Act were served upon the writ applicant on 17.08.2007, 10.07.2018 and 27.08.2018 respectively to submit the explanation and/or documents to explain the cash deposit made by the writ applicant in his bank account. The writ applicant replied to the notices in part. The revenue authority had served the show-cause notice on 13.11.2018. The writ applicant sought an adjournment for 15 days for hearing and accordingly, the matter was fixed for hearing on 04.12.2018 and on that day, in absence of the writ applicant, the matter was concluded finally and ex parte assessment order came to be passed. It is required to be noted that, the whole exercise undertaken by the respondent authority was faceless, in other words, everything to be submitted online as per the CBDT guidelines in a time bound manner. Thus it cannot be said that, the writ applicant had not been given a fair opportunity of hearing. Considering Section 264A of the Income Tax Act, which provides statutory alternative remedy against the impugned order of assessment, we decline to entertain this writ application as the writ applicant failed to make out his case for invoking the discretionary jurisdiction of this Court under Article 226 of the Constitution of India. Consequently, we relegate the writ applicant to avail the alternative remedy by way of filing statutory appeal before the competent authority. If the appeal is filed, the appellate authority shall not raise technical issue of limitation and decide the same on merits in accordance with law. However, it is made clear that, this writ application is hereby disposed off on the ground of availability of statutory remedy and we have not expressed any opinion on merits including the issue of principles of natural justice. Therefore, the writ applicant may raise the issue of principles of natural justice before the Appellate Authority and the same may be considered by the Appellate Authority in accordance with law.
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