9911796707
TMI Blog2016 (3) TMI 594X X X X Extracts X X X X X X X X Extracts X X X X ..... ent individual units/undertakings located at Raigarh and other locations. For the previous year relevant to the assessment year 2005-06 viz. the year under consideration, the petitioner filed revised return of income on 30th March 2007 declaring income of Rs. 92,06,88,890/-. In the return of income, the petitioner claimed certain deductions under sections 80IA and 80IB of the Act. The said deductions were supported by the audit report in prescribed Form No.10CCB filed alongwith the return of income. All the units in respect of which deduction under sections 80IA and 80IB of the Act was claimed by the petitioner in the assessment year 2005-06 were separate industrial units/undertakings, independently eligible for deduction under the respective sections. The said units were set up in the earlier assessment years and the eligibility of the petitioner to claim deduction under sections 80IA and 80IB of the Act in respect of profits derived from various units was subject matter of not only in the earlier assessment years but also in the assessment year under consideration. Original assessment under section 143(3) of the Act for the assessment year 2005-06 was completed vide order dated 3 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... at the reassessment order was erroneous and prejudicial to the interests of the revenue. Against the said notice, the petitioner filed legal objections challenging the assumption of jurisdiction by respondent No.1 under section 263 of the Act. The petitioner requested respondent No.1 to either drop the revisionary proceedings under section 263 of the Act or to dispose of the legal objections challenging the validity of the said proceedings. The CIT, however, continued with the revisionary proceedings and directed the petitioner to file various details/documents form time to time without disposing of the objections raised by the petitioner. On 18.3.2015, another show cause notice, Annexure P.10 was issued by respondent No.1 requiring the petitioner to show cause why appropriate order under section 263 of the Act should not be passed for the assessment year under consideration. It was alleged by respondent No.1 in the said show cause notice that separate books of account were not being maintained in respect of MBF unit and therefore the said unit was not eligible for deduction under section 80IB of the Act. The petitioner was directed to furnish reply within three days. The petitione ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... forcing it, the remedy provided by that statute only must be availed of. This rule was stated with great clarity by Willes, J. in Wolverhampton New Waterworks Co. v. Hawkesford in the following passage: "There are three classes of cases in which a liability may be established founded upon statute. . . . But there is a third class, viz. where a liability not existing at common law is created by a statute which at the same time gives a special and particular remedy for enforcing it. . .the remedy provided by the statute must be followed, and it is not competent to the party to pursue the course applicable to cases of the second class. The form given by the statute must be adopted and adhered to." The rule laid down in this passage was approved by the House of Lords in Neville v. London Express Newspapers Ltd. and has been reaffirmed by the Privy Council in Attorney-General of Trinidad and Tobago v. Gordon Grant & Co. Ltd. and Secretary of State v. Mask & Co. It has also been held to be equally applicable to enforcement of rights, and has been followed by this Court throughout. The High Court was therefore justified in dismissing the writ petitions in limine." 5. Following the ab ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... dequate efficacious alternative remedy available to the petitioner and he has approached the High Court without availing the same unless he has made out an exceptional case warranting such interference or there exist sufficient grounds to invoke the extraordinary jurisdiction under Article 226. (See:State of U.P. vs. Mohammad Nooh, AIR 1958 SC 86; Titaghur Paper Mills Co. Ltd. vs. State of Orissa, (1983) 2 SCC 433; Harbanslal Sahnia vs. Indian Oil Corpn. Ltd., (2003) 2 SCC 107; State of H.P. vs. Gujarat Ambuja Cement Ltd., (2005) 6 SCC 499). 16. The Constitution Benches of this Court in K.S. Rashid and Sons vs. Income Tax Investigation Commission, AIR 1954 SC 207; Sangram Singh vs. Election Tribunal, Kotah, AIR 1955 SC 425; Union of India vs. T.R. Varma, AIR 1957 SC 882; State of U.P. vs. Mohd. Nooh, AIR 1958 SC 86 and K.S. Venkataraman and Co. (P) Ltd. vs. State of Madras, AIR 1966 SC 1089 have held that though Article 226 confers a very wide powers in the matter of issuing writs on the High Court, the remedy of writ absolutely discretionary in character. If the High Court is satisfied that the aggrieved party can have an adequate or suitable relief elsewhere, it can refuse to e ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... a special remedy for enforcing it, the remedy provided by that statute only must be availed of. This rule was stated with great clarity by Willes, J. in Wolverhampton New Waterworks Co. v. Hawkesford, 141 ER 486 in the following passage: (ER p. 495) '... There are three classes of cases in which a liability may be established founded upon a statute. ... But there is a third class viz. where a liability not existing at common law is created by a statute which at the same time gives a special and particular remedy for enforcing it. ... The remedy provided by the statute must be followed, and it is not competent to the party to pursue the course applicable to cases of the second class. The form given by the statute must be adopted and adhered to.' The rule laid down in this passage was approved by the House of Lords in Neville v. London Express Newspapers Ltd., 1919 AC 368 and has been reaffirmed by the Privy Council in Attorney General of Trinidad and Tobago v. Gordon Grant and Co. Ltd., 1935 AC 532 (PC) and Secy. of State v. Mask and Co., AIR 1940 PC 105 It has also been held to be equally applicable to enforcement of rights, and has been followed by this Court throughout. The High ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... cedure, or has resorted to invoke the provisions which are repealed, or when an order has been passed in total violation of the principles of natural justice, the proposition laid down in Thansingh Nathmal case, Titagarh Paper Mills case and other similar judgments that the High Court will not entertain a petition under Article 226 of the Constitution if an effective alternative remedy is available to the aggrieved person or the statute under which the action complained of has been taken itself contains a mechanism for redressal of grievance still holds the field. Therefore, when a statutory forum is created by law for redressal of grievances, a writ petition should not be entertained ignoring the statutory dispensation. 20. In the instant case, the Act provides complete machinery for the assessment/re-assessment of tax, imposition of penalty and for obtaining relief in respect of any improper orders passed by the Revenue Authorities, and the assessee could not be permitted to abandon that machinery and to invoke the jurisdiction of the High Court under Article 226 of the Constitution when he had adequate remedy open to him by an appeal to the Commissioner of Income Tax (Appeals) ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
