TMI Blog2016 (3) TMI 594X X X X Extracts X X X X X X X X Extracts X X X X ..... e and the Assessing Officer was directed to make fresh assessment after making necessary and proper enquiry/investigation. 2. A few facts relevant for the decision of the controversy involved as narrated in the petition may be noticed. The petitioner is a public limited company. It is engaged, inter-alia, in the business of manufacture/generation of steel, power, iron, pig iron, sponge iron etc. at various separate and independent 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 ₹ 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. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... l basis in order to determine the amount of profits in respect of MBF unit eligible for deduction under section 80IB of the Act. Against the reassessment order dated 4.3.2013, Annexure P.7, the petitioner filed appeal before the CIT(A) which is pending. Subsequently, respondent No.1 issued show cause notice dated 22.10.2013, Annexure P.8 under Section 263 of the Act proposing to revise the reassessment order dated 4.3.21013. It was alleged that 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 petitio ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... to be stated upon a question of law for the opinion of the High Court under Section 24 of the Act. The Act provides for a complete machinery to challenge an order of assessment, and the impugned orders of assessment can only be challenged by the mode prescribed by the Act and not by a petition under Article 226 of the Constitution. It is now well recognised that where a right or liability is created by a statute which gives 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 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... w that non-entertainment of petitions under writ jurisdiction by the High Court when an efficacious alternative remedy is available is a rule of self-imposed limitation. It is essentially a rule of policy, convenience and discretion rather than a rule of law. Undoubtedly, it is within the discretion of the High Court to grant relief under Article 226 despite the existence of an alternative remedy. However, the High Court must not interfere if there is an adequate 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; Uni ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ourt normally will not permit by entertaining a petition under Article 226 of the Constitution the machinery created under the statute to be bypassed, and will leave the party applying to it to seek resort to the machinery so set up. 13. In Titaghur Paper Mills Co. Ltd. v. State of Orissa, (1983) 2 SCC 433 this Court observed: (SCC pp. 440-41, para 11) 11. It is now well recognised that where a right or liability is created by a statute which gives 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 a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t in a particular forum, in a particular way, it must be sought in that forum and in that manner, and all the other forums and modes of seeking [remedy] are excluded. 19. Thus, while it can be said that this Court has recognized some exceptions to the rule of alternative remedy, i.e., where the statutory authority has not acted in accordance with the provisions of the enactment in question, or in defiance of the fundamental principles of judicial procedure, 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
