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2016 (10) TMI 504

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..... not be a silent spectator in such extraordinary situation. (Ref: Awadh Bihari Yadav and others versus State of Bihar and others, (1995 (8) TMI 320 - SUPREME COURT)). However, this is not the fact situation obtaining in the instant case. What to talk of an extraordinary situation or circumstance, the petitioner firm has not even disclosed about the pendency of the appeal in its writ petition and the same only finds mention in the list of dates appended therewith. There being no extraordinary situation or circumstance warranting this Court to step-in to interfere, we are clearly of the view that the instant writ petition is not maintainable. The petitioner firm having chosen to avail of the remedy, as provided in the statute that too earli .....

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..... effect from 30.11.2001, the respondent No.1 without following the procedure laid down under Section 127(1) 4 of the Income Tax Act, 1961, (for short Act ) has illegally vide order dated 18/19.01.2006 transferred the case of the petitioner firm from ITO, Parwanoo to ITO, Una and thereafter respondent No.2 has illegally passed the assessment order dated 26.12.2006 making an ex parte assessment of ₹ 4,82,565/-. 3. The respondents have filed their reply wherein they have raised the preliminary objection regarding the very maintainability of the petition on the ground that the petitioner firm has already questioned the impugned order of assessment by filing an appeal and, therefore, cannot be permitted to choose two forums in respec .....

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..... ently under Sections 142/143 of the Act were duly received by the partners of the petitioner firm as the same were sent at the addresses as given in the partnership deed dated 01.40.2000. We have heard the learned counsel for the parties and gone through the material placed on record. 5. At the outset, it may be observed that there is no dispute that the petitioner firm prior to filing of the instant petition has already assailed the assessment order dated 26.12.2006 by filing statutory appeal under Section 246A (1) (b) of the Act before the appellate authority. Therefore, the moot question is whether the petitioner firm can maintain a petition under Article 226 of the Constitution of India for the reliefs for which it has already ava .....

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..... tice Scrutton, in Verschures Creameries Ltd. v. Hull and Netherland Streamship Company Limited (1921) 2 K.B. 608 (D), it was observed:- The ground of the decision is that when on the same facts, a person has the right to claim one of two reliefs and with full knowledge he elects to claim one and obtains it, it is not open to him thereafter to go back on his election and claim the alternative relief. 9. In A.V. Venkateswaran, Collector of Customs, Bombay versus Ramchand Sobhraj Wadhwani and Anr., AIR 1961 SC 1506, another Constitution Bench of the Hon ble Supreme Court held that even where a party has approached the alternative Forum, the Court should entertain the writ petition or not, cannot be formulated in a straightjacket for .....

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..... d. versus State of Bihar and Ors., 2004 Supp 2 JT 601, the Court held that mere availability of alternative forum for appropriate relief does not impinge upon the jurisdiction of the High Court to deal with the matter. Even if it is not a position to do so on the basis of the affidavits filed, however, if a party has already availed the alternative remedy while invoking the jurisdiction under Article 226 of the Constitution it will not be appropriate to the Court to entertain the writ petition. 14. In State of Punjab and others versus Punjab Fibres Ltd. and others, (2005) 1 SCC 604, a Bench of Hon ble three Judges held that where the assessee challenges order of the Sales Tax Tribunal in an appeal as well as in writ petition simultaneou .....

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