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2022 (9) TMI 42 - HC - Income TaxMaintainability of appeal before High Court - Statutory remedy of appeal u/s 246 - TDS u/s 194J - penalty u/s 201 as petitioner-college having failed to deduct tax at source in regard to payment made by way of honorarium to Guest Faculty Lecturers - petitioner submits that in view of undisputed facts involved of the Guest Faculty Lecturers neither falling under technical service nor professional service as per Section 194J statutory remedy of appeal though available is not efficacious, and therefore, grievance raised herein can very well be adjudicated under Article 226 of the Constitution. HELD THAT:- As having perused the material on record and the provisions of Section 194J of Act of 1961, this Court is of the considered view that to ascertain the real object and import of the relationship between petitioner-college and Guest Faculty Lecturers and as to whether Guest Faculty Lecturers on the anvil of Section 194J for the purpose of T.D.S., disputed questions of fact will have to be gone into. It is trite law that writ jurisdiction ought not to be exercised when disputed questions of fact are involved and the relevant statute provides for an alternative efficacious remedy. Petitioner has not availed the alternative efficacious statutory remedy of appeal u/s.246 of Act of 1961 before Commissioner (Appeals). This Court do not see any apparent jurisdictional error in the order of Assessing Authority (Annexure P/1), and therefore, none of the exceptions laid down in the decision of Apex Court in the case of Whirlpool Corporation vs. Registrar of Trademarks, Mumbai [1998 (10) TMI 510 - SUPREME COURT] can come to the rescue of petitioner-college. Since an interim order was passed by this Court which continues to subsist till date, this Court grants 45 days’ time to petitioner-college to approach the Appellate Authority u/s 246 of Act of 1961 and till then the interim order passed by this Court on 02.08.2021 shall continue to subsists. It is made clear that continuance of interim order is made merely to enable the petitioner to approach the appropriate appellate Forum and not to prejudice the mind of Appellate Authority, who is free to adjudicate the appeal on admission as well as on interim relief without being influenced by this order.
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