TMI Blog2019 (6) TMI 1181X X X X Extracts X X X X X X X X Extracts X X X X ..... urged before the Commissioner of Income Tax (Appeals) i.e. the Appellate Authority under Section 246 of the Income Tax Act. Yet another reason why we must refrain from interference is because the scope of interference in an intra-court appeal is extremely limited. Interference by a Division Bench, in an intra-court appeal, would be justified only if the order under appeal suffers from a patent illegality. The learned Single Judge is not a court subordinate. The Division Bench exercises the very same jurisdiction which the learned Single Judge exercises under Article 226 of the Constitution of India. Even in cases where two views are possible, and one of the possible views has found acceptance with the learned Single Judge, the Division Bench would refrain from interfering with the order under appeal, even if it is satisfied that a view, other than the view which found favour with the learned Single Judge, is more attractive. In the present case, the learned Single Judge has relegated the appellant-writ petitioner to avail his statutory remedy of an appeal under Section 246. It has not been contended before us that exercise of discretion by the learned Single Judge, to relegat ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of the Assessing Authority, before proceeding to assess the appellant-writ petitioner to tax, to issue a notice again under Section 143(2) and, thereafter, pass an order under Section 143(3); and it is only if the appellant-writ petitioner does not submit his reply to the notice under Section 143(2) of the Act, can the Assessing Authority then proceed to make a best judgment assessment under Section 144 of the Act. 4. Before the learned Single Judge, it was contended on behalf of the Revenue by Mr. Hari Mohan Bhatia, learned Senior Standing Counsel, that, since an efficacious remedy of an appeal was available under Section 246 of the Act, a Writ Petition, under Article 226 of the Constitution of India, was not maintainable. The learned Single Judge observed that a perusal of the assessment order revealed that the assessee had neither filed his return of income, nor had he filed his written submissions; and the appellant-writ petitioner could not be permitted to by-pass the remedy available, and invoke the writ jurisdiction of this Court. Leaving it open to the appellantwrit petitioner to avail the remedy available under Section 246 of the Act, the learned Single Jud ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nsel for the appellant-writ petitioner, whether or not such a remedy was available, learned counsel, while stating that a statutory remedy of an appeal was undoubtedly available, would contend that mere existence of an alternative remedy did not bar the appellant-writ petitioner from invoking the writ jurisdiction of this Court. 8. Since reliance is placed, on behalf of the appellant-writ petitioner on Whirlpool Corporation, it is useful to refer to the law declared therein. The Supreme Court held:- .. The power to issue prerogative writs under Article 226 of the Constitution is plenary in nature and is not limited by any other provision of the Constitution This power can be exercised by the High Court not only for issuing writs in the nature of Habeas Corpus, Mandamus, prohibition, Qua Warranto and Certiorari for the enforcement of any of the Fundamental Rights contained in Part III of the Constitution but also for any other purpose . Under Article 226 of the Constitution, the High Court, having regard to the facts of the case, has discretion to entertain or not to entertain a writ petition. But the High Court has imposed upon itself ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... iction exercised by this Court, under Article 226 of the Constitution of India, is discretionary; and a writ is not issued for the mere asking. 11. The High Court, while exercising jurisdiction under Article 226 of the Constitution of India, adheres to certain self-imposed limitations, and would, ordinarily, refrain from exercising its discretionary jurisdiction in cases where the aggrieved party has an efficacious alternative appellate remedy under a statute. While the jurisdiction of this Court can, undoubtedly, be invoked even against the order passed by the Assessing Authority, this Court, while exercising its discretionary jurisdiction under Article 226 of the Constitution, would ordinarily exercises self-restraint and refrain from interference where the contention urged in the Writ Petition can also be urged before the Appellate Authority under the Income Tax Act. It has not been disputed before us that the contentions urged in the Writ Petition can be urged before the Commissioner of Income Tax (Appeals) i.e. the Appellate Authority under Section 246 of the Income Tax Act. 12. Yet another reason why we must refrain from interference is because t ..... X X X X Extracts X X X X X X X X Extracts X X X X
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