Jammu & Kashmir H.C : These writ petitions challenge the notices issued by the concerned ITO under s. 186

H.L. Bhagotra, S. Dutt, J.S. Kotwal, J.M. Gupta & M.M. Gupta for the Petitioner : T.S. Thakur, for the Respondent

S.S. KANG, C.J.:

This order will dispose of the above mentioned batch of writ petitions as they raise a common question of law and facts. These writ petitions challenge the notices issued by the concerned ITO under s. 186 of the IT Act, 1961 (“the Act”), requiring the petitioner-assessee to show cause as to why the registration granted to them be not cancelled because they are alleged to have taken partners without the approval of the licensing authority under the Act.

The Act is a complete code and provides various remedies in the form of appeals, etc., to the aggrieved assessees. The petitioners can raise all the points raised in these writ petitions before the concerned ITO and invite adjudication thereupon. The issues agitated tend to raise controversies regarding facts. Writ proceedings are not appropriate proceedings for determination of such controversies. Even otherwise, the petitioners have effective and efficacious remedies for contesting the notices and any adverse orders stemming therefrom.

Learned counsel for the petitioners have vehemently argued that the petitioners had approached this Court on earlier occasions and some of the writ petitions are pending in this Court for the last 5/6 years. It will be grave injustice if they are, at this stage, directed to go to the authorities under the Act to seek redressal of their grievances. I am not impressed by this argument. Even after the writ petitions are admitted for hearing, it is open to this Court to examine as to whether the jurisdiction under Art. 226 and 227 of the Constitution of India and ss. 103 and 104 of the Constitution of Jammu and Kashmir should be exercised or not. From the facts and circumstances of these cases, I am of the view the there are no special circumstances in these cases absolving the petitioners from taking recourse to the ordinary remedies under law.

Consequently, I decline to exercise my jurisdiction under the aforementioned articles and relegate the petitioners to avail of the remedies under ordinary law by raising all objections before the concerned ITO. The petitioners shall be at liberty to file their objections to the impugned orders, if they have not already filed, on or before 1st June, 1990. However, in the interests of justice, it is directed that, in the case of each of the petitioners the concerned ITO shall take up the first year for which notices under s. 186 have been issued. He shall first decide that case and record his conclusions regarding the genuineness and validity of the partnership concern and only thereafter the matters pertaining to the following years shall be taken up but not earlier than six months. Learned counsel for the petitioners are agreed that if the concerned ITO takes up the notices for the subsequent years after a period of six months of the passing of the first order aforementioned, then the petitioners shall not raise the question of limitation. With these observations, the writ petitions are disposed of. Petitioners through their learned counsel are directed to appear before the concerned ITO on 1st June, 1990.

[Citation : 189 ITR 312]