TMI Blog2022 (6) TMI 1281X X X X Extracts X X X X X X X X Extracts X X X X ..... hat no documents have been provided to him before passing the impugned order but there is no prayer in the present petition seeking those documents. Faced with the situation, Senior Counsel submits that Communication dated 28th March, 2022 though titled as request letter are indeed objections and be treated so. Bare perusal thereof shall reveal that the objections sought to be raised in present petition have not been raised in the said communication. In the facts of this case we need to observe that the petitioner has been served with notice under Section 148 of the Act. In case the present proceedings culminate in the order of assessment under Section 147 of the Act, the same will be appealable. Statutory appeal is provided under the Act. All pleas raised herein can well be raised in the appeaL As relying on Apex Court summarized the principles governing exercise of writ jurisdiction by the High Court in the presence of alternate remedy in case of 'Radha Krishan Industries vs. State of Himachal Pradesh [ 2021 (4) TMI 837 - SUPREME COURT] we do not find that this is a case wherein writ jurisdiction under Article 226 of the Constitution of India should be exercised even th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... income of the RKS Builders and the assess, the assumption of jurisdiction at the hands of Assessing Officer is bad in law. It has been further asserted by Counsel for the petitioner that since the authorities failed to supply the requisite documents to the petitioner before passing of impugned order dated 7th April, 2022, the action of the Authorities is in violation of law laid down by Supreme Court in the case of 'GKN Driveshafts (India) Ltd. vs. Income Tax Officer and others', (2003) 1 SCC 72 , reiterated by Bombay High Court in the case of Tata Capital Financial Services Limited vs. Assistant Commissioner of Income Tax Circle 1(3)(1) and others - Writ Petition No.546 of 2022, decided on 15th February, 2022 and law laid down by Delhi High Court in the case of 'Sabh Infrastructure Ltd. vs. Asstt. Commissioner of Income Tax', 2017 SCC OnLine Del 10863. 5. Senior Counsel further asserts that the firm i.e. M/s RKS Builders and the petitioner are different individuals and different assessees for the purpose of Income Tax Act thus, for any escapement of income at the hands of firm he ought not have been saddled with the proceedings of reassessment. 6. We ha ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 226 of the Constitution when he had adequate remedy open to him by an appeal to the Tribunal. Similarly, in the case of 'Commissioner of Income Tax, Gujarat vs. VijayBhai N. Chandrani', (2013) 14 SCC 661, it was held that - 12. In our considered view, at the said stage of issuance of the notices under Section 153C, the assessee could have addressed his grievances and explained his stand to the Assessing Authority by filing an appropriate reply to the said notices instead of filing the Writ Petition impugning the said notices. It is settled law that when an alternate remedy is available to the aggrieved party, it must exhaust the same before approaching the Writ Court. In Bellary Steels Alloys Ltd. v. CCT, (2009) 17 SCC 547, this Court had allowed the assessee therein to withdraw the original Writ Petition filed before the High Court as the said proceedings came to be filed against the show-cause notice and observed that the High Court should not have interfered in the matter as the Writ Petition was filed without even reply to the show cause notice. This Court further observed as follows: 3. In the circumstances, we could have dismissed these civil ap ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... act, and does not by assuming jurisdiction under Article 226 trench upon an alternative remedy provided by statute for obtaining relief. Where it is open to the aggrieved petitioner to move another tribunal, or even itself in another jurisdiction for obtaining redress in the manner provided by a statute, the High Court 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 1859 6 CBNS 336 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 n ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r the enforcement of a fundamental right protected by Part III of the Constitution; (b) there has been a violation of the principles of natural justice; (c) the order or proceedings are wholly without jurisdiction; or (d) the vires of a legislation is challenged; (iv) An alternate remedy by itself does not divest the High Court of its powers under Article 226 of the Constitution in an appropriate case though ordinarily, a writ petition should not be entertained when an efficacious alternate remedy is provided by law; (v) When a right is created by a statute, which itself prescribes the remedy or procedure for enforcing the right or liability, resort must be had to that particular statutory remedy before invoking the discretionary remedy under Article 226 of the Constitution. This rule of exhaustion of statutory remedies is a rule of policy, convenience and discretion; and (vi) In cases where there are disputed questions of fact, the High Court may decide to decline jurisdiction in a writ petition. However, if the High Court is objectively of the view that the nature of the controversy requires the exercise of its writ jurisdiction, such a view would not readil ..... X X X X Extracts X X X X X X X X Extracts X X X X
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