TMI Blog2021 (9) TMI 1275X X X X Extracts X X X X X X X X Extracts X X X X ..... and it is at the discretion of the Appellate Authority. The most important and significant aspect of the matter even according to the impugned order is, a show-cause notice dated 04.03.2021 has been sent to the writ petitioner /assessee and writ petitioner has not sent any reply or explanation. Owing to this, the respondent has concluded that the Assessee has no objection qua addition/disallowance made in the draft Assessment Order. That point that is being canvassed turns on Section 80B of IT Act was not raised before the Assessing Officer though an opportunity was given to the writ petitioner and writ petitioner did not avail the same. In this view of the matter, nothing prevents the writ petitioner from raising this very point in an ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... re this Virtual Court. Mr.A.N.R.Jayapratap, learned junior Standing Counsel for Income Tax accepts notice on behalf of lone respondent, with the consent of learned counsel on both sides, main writ petition is taken up as the matter turns on a very short point. 3. In the captioned main writ petition, an Assessment Order being 'order dated 12.03.2021 bearing reference ITBA/AST/S/143(3)/2020-21/1031436742(1)' (hereinafter 'impugned order' for the sake of convenience and clarity) has been called in question. Learned counsel for writ petitioner points out that the impugned order pertains to the assessment year 2018-19. Learned counsel submits that the writ petitioner is entitled to get deduction under Section 80B of 'The I ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... very point in an appeal. The right of the writ petitioner to raise this point before the Appellate Authority is preserved. This Court has repeatedly held that alternate remedy, though not a absolute rule i.e., a rule of discretion and self imposed restraint qua writ court has to be applied strictly when it comes to fiscal statutes as long as exceptions such as NJP violation are not attracted. This view of this court has been taken by respectfully following the ratio laid down by Hon'ble Supreme Court in a long line of case laws including Dunlop India, Satyawati Tondon and K.C.Mathew case laws being Assistant Collector of Central Excise, Chandan Nagar, West Bengal Vs Dunlop India Ltd. reported in (1985) 1 SCC 260 , Unite ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Satyawati Tondon the High Court had restrained further proceedings under Section 13(4) of the Act. Upon a detailed consideration of the statutory scheme under the SARFAESI Act, the availability of remedy to the aggrieved under Section 17 before the Tribunal and the appellate remedy under Section 18 before the Appellate Tribunal, the object and purpose of the legislation, it was observed that a writ petition ought not to be entertained in view of the alternate statutory remedy available holding: (SCC pp.123 128, Paras 43 55) 43. Unfortunately, the High Court overlooked the settled law that the High Court will ordinarily not entertain a petition under Article 226 of the Constitution if an effective remedy is available to the aggrie ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Mathew's case the paragraph extracted and reproduced supra, Satyawati Tondon principle has been reiterated. 6. One of the orders in which this court has taken aforementioned view has been affirmed by a Hon'ble Division Bench of this Court. The writ petition order is dated 28.06.2019 (in W.P.No.17804 of 2019) and the order of Hon'ble Division Bench confirming the same is order dated 10.02.2020 in W.A.No.196 of 2020. Therefore, the aforementioned alternate remedy rule qua fiscal statute is the view of a Hon'ble Division Bench of this Court and this Court respectfully follows the same. 7. Captioned writ petition is, therefore, disposed of holding that the rights of the writ petitioner to prefer an appeal against the im ..... X X X X Extracts X X X X X X X X Extracts X X X X
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