Madras H.C : The appeal remedy is an effective and efficacious remedy, on the mere allegation that the appellate authority may follow the decision relied on by the assessing authority, is no ground for invoking the jurisdiction under Art. 226 of the Constitution of India

High Court Of Madras

Nova Films & Paper Manufacturing Co. vs. ITO

Section Art. 226

Asst. Year 2001-02, 2002-03

P.D. Dinakaran & Mrs. Chitra Venkataraman, JJ.

W.A. Nos. 380 & 381 of 2006

13th March, 2007 

Counsel Appeared :

V. Ramachandran for Dr. Anita Sumanth, for the Appellant : Mrs. Pushya Sitaraman, for the Respondent

JUDGMENT

Mrs. CHITRA VENKATARAMAN, J. :

These writ appeals are against the order of the learned Single Judge in Writ Petn. Nos. 7676 and 7677 of 2006, dt. 20th March, 2006, wherein, the appellant herein challenged the orders of assessment for the asst. yrs. 2002-03 and 2001-02 respectively. Learned Single Judge, referring to the decision reported in Nivaram Pharma (P) Ltd. vs. The Customs, Excise & Gold (Control) Tribunal, South Regional Branch & Ors. (2005) 2 MLJ 246, dismissed the writ petitions on the ground of availability of alternative remedy. Aggrieved of this, the assessee/writ petitioner has preferred these writ appeals, contending that when the proceedings taken were totally without jurisdiction, such a jurisdictional error could be corrected under Art. 226 of the Constitution of India. Learned senior counsel appearing for the appellant submitted that although an effective alternative remedy by way of an appeal is available, yet, an appellate authority under the Act was most likely to follow the judgment relied on by the assessing authority for the purpose of passing the assessment. This would be to the detriment of the appellant, since, according to the counsel, the same was not applicable to its case. He submitted that the assessee’s case was directly covered by the decisions of the High Court and the Supreme Court and that they did not require investigation of complicated facts.

We do not agree with the contention put forth, as stated above. A perusal of the order and the other materials enclosed in the paper book clearly shows that the claim of the assessee requires investigation into the facts, that, in any event, when it could not be denied that the appeal remedy is an effective and efficacious remedy, on the mere allegation that the appellate authority may follow the decision relied on by the assessing authority, is no ground for invoking the jurisdiction under Art. 226 of the Constitution of India. In the circumstances, we do not find any merit in the submission of the learned senior counsel to interfere with the orders of assessment. In this connection, we refer to the decision of a Division Bench of this Court in Dr. K. Nedunchezhian vs. Dy. CIT (2005) 199 CTR (Mad) 432 : (2005) 279 ITR 342 (Mad), wherein, the Division Bench affirmed the decision in Dr. K. Nedunchezhian vs. Dy. CIT (2005) 199 CTR (Mad) 301 : (2005) 274 ITR 37 (Mad), and following the decision of the apex Court, held that when there is an alternative remedy, ordinarily, writ jurisdiction under Art. 226 of the Constitution of India should not be invoked and that the principle applies with greater force to this proceeding. It is stated by the learned senior counsel for the assessee that they had already invoked the appellate jurisdiction. The appellant had preferred petitions for modification of the order passed by us on 27th Feb., 2007 in this appeal, praying that the direction as to the payment of interest at 50 per cent may not be insisted upon. The appellant has filed the petitions in W.A.M.P. Nos. 83 and 84 of 2007 and had stated that they had paid a sum of Rs. 1 crore. In the circumstances, they have prayed for modification, to permit the appellant to pay the balance of tax referred to in the order dt. 27th Feb., 2007 within a period of four weeks from 13th April, 2007 and waive the payment of interest, as contained in the order. Considering the fact that the assessee had paid Rs. 1 crore and had expressed its financial difficulty, we modify the order to the extent that the direction to pay 50 per cent of the interest payable, shall stand deleted. It is hereby made clear that the interest payable, as computed in the order of the AO, will however be subject to the result in the appeal preferred by the petitioner. The writ appeals are dismissed. Accordingly, W.A.M.P. Nos. 83 and 84 of 2007 are ordered and W.A.M.P. Nos. 808 and 809 of 2006 are closed.

[Citation : 296 ITR 340]

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