TMI Blog2018 (1) TMI 544X X X X Extracts X X X X X X X X Extracts X X X X ..... his possession of cash amounting to ₹ 2,76,35,500/-. In such circumstances, the issuance of notices by the competent authority under Sections 153A and 143(2) of the Act as noticed above cannot be held to be without jurisdiction so as to be amenable to challenge under Articles 226/227 of the Constitution of India. - CWP No.29244 of 2017 - - - Dated:- 20-12-2017 - MR. AJAY KUMAR MITTAL AND MR. AMIT RAWAL, JJ. For The petitioner : Mr. J.S.Bhasin, Advocate with Mr. Rajiv Sharma, Advocate ORDER Ajay Kumar Mittal, J. 1. Prayer in this petition filed under Articles 226/227 of the Constitution of India is for quashing the search and seizure proceedings and consequential assessment proceedings initiated by issuance of notices under Section 153A of the Income Tax Act, 1961 (in short, the Act) in the name of the petitioner for the assessment years 2010-11 to 2015-16 and notice under Section 143(2) of the Act for the assessment year 2016-17 inspite of the fact that statement of the petitioner was recorded and income was surrendered as Director of the Company and assets sold belong to the company and not to the Director. Further prayer has been made for a dir ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the petitioner offered to pay capital gain tax on total sale consideration of ₹ 6 croes in company s case. The petitioner being Director of the company filed income tax return for the assessment year 2016-17 on 26.7.2017 declaring capital gain on total sale consideration of ₹ 6 crores, with unpaid self tax liability of ₹ 1,11,26,415/- for adjustment thereof out of the company s seized cash of ₹ 2,76,35,500/-. The said return without payment of self assessment tax was held defective by the authorities. When no incriminating document or asset was found in search, notices under Sections 153A and 143(2) of the Act dated 25.11.2016 and 11.12.2017 respectively were issued to the petitioner. The petitioner submitted an application to Deputy Commissioner of Income Tax, Mohali (DCIT) for supply of copies of statements/documents seized during search on 19.5.2015. The case of the petitioner was transferred first to DCIT Circle 6(1) Chandigarh and then to Assistant Commissioner of Income Tax, Circle 4(1) Chandigarh (ACIT). The petitioner is aggrieved by the fact that the assessment proceedings have been initiated against him under Section 153A of the Act following execu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ative 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; Union of India vs. T.R. Varma, AIR 1957 SC 882; State of U.P. vs. Mohd. Nooh , AI ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t 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 adhered to. The rule lai ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... der, a particular remedy to be sought 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 th ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
