High Court Of Kerala
Mani & Co. vs. Income Tax Officer & Anr.
Section 256(1)
Asst. Year 1979-80, 1980-81
K.A. Nayar, J.
Original Petn. No.8307 of 1989
6th October, 1989
K. A. NAYAR, J.:
The original petition is filed praying to quash Ex. P-1 to P-3 and P-6 orders of the ITO as well as the appellate order of the Tribunal. For the asst. yrs. 1979-80 and 1980-81, the petitioner was assessed to income-tax. Against the assessments, the petitioner filed appeals before the CIT(A) and the same were disposed of by Ex. P-4 and Ex. P-5. Both the assessee and the Revenue filed second appeals before the Tribunal. For the two years under consideration, the assessee had shown losses on receipts and the ITO rejected the book results and applied an average rate of 10 per cent and estimated the income. The CIT(A) accepted the assessee’s contention in part and it is thereafter that both the assessee and the Department filed appeals before the Tribunal. The Tribunal has disposed of all the appeals by Ex. P-6. The Tribunal found that for the preceding assessment years also, the assessee had been showing 1 per cent. and 2 per cent. profits and the matter was settled with the Settlement Commissioner at about 10 per cent. profit. Therefore, the Tribunal found no reason to consider a different yardstick from the appellate order for the two years in question. Accordingly, the Tribunal dismissed the assessee’s appeal and allowed the Department’s appeal. Against the order of the Tribunal, the petitioner has a statutory remedy by way of application for reference under s. 256(1) of the IT Act, 1961, and it is submitted that the assessee has availed of that remedy and filed petitions before the Tribunal. But, in the meantime, this original petition is filed to quash the same orders on the ground that the statutory remedy available is one involving delay. That is the ground for exercising jurisdiction under Arts. 226 and 227. If a statutory remedy is available to the assessee, he has to avail of that remedy. The petitioner approached this Court challenging the same orders against which a statutory remedy is available.
2. Therefore, there is no merit in the petition. I make it clear that this will not preclude the petitioner from availing of statutory remedy.
The original petition is dismissed.
[Citation : 182 ITR 357]
