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TMI Blog2024 (9) TMI 1381X X X X Extracts X X X X X X X X Extracts X X X X ..... assessment years 2016-17 to 2019-20. The assessment under Sec. 153A of the Act was completed on 28.09.2021 accepting the returned income, for all the assessment years vide separate orders. 3. The Principal Commissioner of Income Tax (Central), the 2nd respondent herein, exercising his jurisdiction under Section 263 of the I.T.Act, after calling for records of the petitioner, for the subject assessment years, revised all the orders of assessment vide separate orders, observing that the order of assessment dated 28.09.2021 passed under Section 153A of Income tax Act is prejudicial to the interests of the Revenue, he accordingly set aside the order of assessment with a direction to the assessing officer to re-do the assessment afresh after providing reasonable opportunity to the petitioner. Pursuant to the said order of the 2nd respondent, the assessing officer had issued notices under Section 142 (1) of the Income Tax Act, calling for information inter-alia, with regard to un-secured hand loans, mode of acceptance of the said loan and for confirmation letters from the said creditors. In response to the notice, the petitioner vide his letter dated 11.12.2023, has stated that the amou ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... la, contends that as against the order of the assessment, though an alternative remedy of appeal is provided to the Commissioner of Income tax(Appeals), the writ petition is maintainable since order of the assessing officer is without jurisdiction in as much as the assessing officer did not decide the issue with regard to the admissibility of the xerox copies of the promissory notes. He contends that the only basis for making the additions under Section 69A of the Act, are the photocopies of the promissory notes which the petitioner has claimed to be bogus. The learned counsel for the petitioner further contends that the onus is on the department to establish the taxability of the said income. He contends that without discharging the said liability, the order of assessment is non est and cannot be sustained. In support of his contention that the alternative remedy of appeal would not be a bar for entertaining the writ petition he relies on the decision of the Hon'ble Supreme Court in the case of M/s. Godrej Sara Lee Ltd.,Vs. The Excise and Taxation Officer Cum Assessing Authority & Ors, wherein the Hon'ble Apex Court by referring to the decisions of the Hon'ble Supreme Court in the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... y to pursue the alternative remedy provided by a statute, is a rule of policy, convenience and discretion rather than a rule of law. Though elementary, it needs to be restated that "entertainability" and "maintainability" of a writ petition are distinct concepts. The fine but real distinction between the two ought not to be lost sight of. The objection as to "maintainability" goes to the root of the matter and if such objection were found to be of substance, the courts would be rendered incapable of even receiving the lis for adjudication. On the other hand, the question of "entertainability" is entirely within the realm of discretion of the high courts, writ remedy being discretionary. A writ petition despite being maintainable may not be entertained by a high court for very many reasons or relief could even be refused to the petitioner, despite setting up a sound legal point, if grant of the claimed relief would not further public interest. Hence, dismissal of a writ petition by a high court on the ground that the petitioner has not availed the alternative remedy without, however, examining whether an exceptional case has been made out for such entertainment would not be proper. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 2 SCC 724 (State of Uttar Pradesh & ors. vs. Indian Hume Pipe Co. Ltd.) and (2000) 10 SCC 482 (Union of India vs. State of Haryana). What appears on a plain reading of the former decision is that whether a certain item falls within an entry in a sales tax statute, raises a pure question of law and if investigation into facts is unnecessary, the high court could entertain a writ petition in its discretion even though the alternative remedy was not availed of; and, unless exercise of discretion is shown to be unreasonable or perverse, this Court would not interfere. In the latter decision, this Court found the issue raised by the appellant to be pristinely legal requiring determination by the high court without putting the appellant through the mill of statutory appeals in the hierarchy. What follows from the said decisions is that where the controversy is a purely legal one and it does not involve disputed questions of fact but only questions of law, then it should be decided by the high court instead of dismissing the writ petition on the ground of an alternative remedy being available. 9. Now, reverting to the facts of this appeal, we find that the appellant had claimed before t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tions of the Commissioner exercising the jurisdiction under Section 263 of the Act, setting aside the assessment order dated 28-09-2021, as being erroneous and prejudicial to the interests of the Revenue. The petitioner has accepted the order of Revision passed by the CIT U/s.263 of the Act and the same has become final. 12. It is settled principle of law that the alternative remedy of appeal would not be a bar to exercise jurisdiction under Article 226 of the Constitution of India. However the same, as held by the apex court, is subject to certain limitations that warrants the exercise of jurisdiction, viz., where the order impugned is without jurisdiction, is in gross violation of principles of natural justice or is beyond the jurisdiction, or where the vires of the provisions of the Act are under challenge. In the instant case, pursuant to the order of Revision passed by the CIT u/s.263 of the Act, the assessing officer has issued notices under Section142 (1) of the Act dated 24.03.2023, 03.10.2023 and 09.11.2023 calling for details of the un-secured hand loans and confirmations from the said creditors. The petitioner has failed to furnish relevant information asked for, except ..... X X X X Extracts X X X X X X X X Extracts X X X X
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