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2021 (12) TMI 261 - HC - Income TaxAssessment made u/s143(3) - alternate remedy inter alia u/s 246(A) - assessment order proceeds on the basis that the selling price is only Ex- Quarry price - assessment order proceeds on the basis that the raising-cum-selling agreement i.e., aforementioned 30.11.2005 agreement between the petitioner and TAMIN requires the difference between the selling price and the raising rate to be paid for production of minerals with taxes - HELD THAT:- As in the case on hand, none of the exceptions are attracted as would be evident from the narrative (narrative that includes capturing rival submissions) and discussion which has been set out supra. The arguments that there should have been reopening of six previous assessment orders, that the reply from TAMIN ought to have been considered and that the first respondent should not proceeded on the basis of the reply / response of the writ petitioner may well qualify as grounds of appeal but they do not warrant interference in writ jurisdiction as it is neither excess of jurisdiction or any other issue leading to a jurisdictional issue. It is nobody's case that there was any violation of 'principles of natural justice' ('NJP') in the case on hand. Case on hand is not challenge to a statute or subordinate legislation. There is nothing demonstrable qua breach of fundamental rights. To put in a nutshell, none of the Commercial Steel exceptions are attracted. Writ petitioner is under the impression that appeal remedy is available under Section 248 of the IT Act. Considering the impugned order, it may not be under Section 248 of the IT Act as that pertains to 'Tax Deduction at Source' (TDS). However, in the case on hand, the appeal remedy will be under 246-A of the IT Act. It is not necessary to dilate further on this and for the purposes of this case it will suffice to say that there is a appeal remedy and there is nothing to demonstrate that appeal remedy is not efficacious. When the appeal remedy is available and there is nothing to demonstrate that it is not efficacious, in the light of the discussion and dispositive reasoning thus far, this Court has no hesitation in holding that this is a fit case for relegating the writ petitioner to the alternate remedy under Section 246-A of IT Act. If the writ petitioner files an appeal, as already alluded to supra, subject to limitation and subject to pre-deposit condition if any, the said appeal shall be considered on its own merits and in accordance with law by the appellate authority. It is also made clear that it is open to the writ petitioner to seek exclusion of time spent in the captioned writ petition under Section 14 of the Limitation Act and if the writ petitioner chooses to do so, the Appellate Authority shall decide the same on its own merits and in accordance with law.
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