High Court Of Rajasthan : Jaipur Bench
State Bank Of Bikanar & Jaipur vs. Union Of India & Ors.
Sections Art. 226
S.K. Keshote & K.S. Rathore, JJ.
Special Appeal (Writ) No. 1108 of 2003 in Civil Writ Petn. No. 2278 of 2003
28th July, 2003
Counsel Appeared
Sanjay Jhanwar, for the Appellant : R.B. Mathur, for the Respondents
JUDGMENT
S.K. KESHOTE, J. :
Heard the learned counsel for the parties, perused the entire record of the writ petition, special appeal and the order of the learned Single Judge.
2. At the outset we are constrained to observe that the State of Bank of Bikaner & Jaipur has wasted huge public money in making this bulky record of the appeal. In appeal, the State Bank of Bikaner & Jaipur has challenged the order of the learned Single Judge under which, on the application filed by the respondent under Art. 226(3) of the Constitution of India, the interim order granted on 27th March, 2003, has been vacated. Though this appeal is against the interim order on an interlocutory application and ordinarily it is not maintainable but on the insistence of the counsel appearing on behalf of the appellants, we have touched the merits of the matter. Having carefully examined the merits of the matter we are constrained to observe even filing of the writ petition in the matter is uncalled for. It was avoidable and unwarranted litigation before this Court. The record of the writ petition is also made bulky one. It is really shocking and surprising that in the matter the State Bank of Bikaner and Jaipur has lavishly spent the money, the people’s money, in litigation. It is an income-tax matter. Against the assessment order of the taxable income made by the IT Department the appellant has already preferred the appeal before the CIT(A), IT Department. We fail to see how in the matter the writ petition is maintainable. The application filed by the appellant under s. 154 of the IT Act has also been rejected by the officer concerned.
It is true that an alternative remedy does not divest this Court of its powers to entertain petitions under Arts. 226 and 227 of the Constitution of India but this principle is hardly of any application on the facts of the present case. It has been settled by a long catena of decisions that when a right or liability has crept in 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 seeking the discretionary remedy under Art. 226 of the Constitution of India. The reference here may have to the five-Judges Bench decision of this Court in the case of Gopi Ram Teli vs. State of Rajasthan 1995 (1) WLC 1. This rule of exhaustion of statutory remedies is no doubt a rule of policy, convenience or discretion and the Court in exceptional cases issues a discretionary writ of certiorari. These are the cases where there is complete lack of jurisdiction for the officer or the authority or the Tribunal to take the action or there has been a contravention of fundamental rights or there has been violation of rules of natural justice or where the Tribunal has acted under the provisions of law, which is ultra vires, then notwithstanding the existence of an
alternative remedy, this Court can exercise its jurisdiction to grant relief. In the case in hand the assessment made by the assessing authority of the IT Department has been challenged. It is not the case of the appellant that the assessing authority of the IT Department has no jurisdiction to make the assessment or he has taken the action or there has been a contravention of fundamental rights of the appellants or there has been a violation of the rules of natural justice or that the officer acted under the provisions of law which is ultra vires.
The grievance is made and justification has been given to come directly to this Court by circumventing the statutory remedy of the appeal that the appellate authority in the IT Department is not deciding the appeals filed by the appellant in the matters of previous assessment years. This is hardly a ground muchless a sufficient ground to justify such a course of action adopted by the appellant in the present case and that too at the cost of the public money. When the litigant had statutory remedy of assailing the order of the assessing authority in the IT Department by filing an appeal it could not bypass such remedy and take recourse to the proceedings under Art. 226 of the Constitution of India. Their Lordships of the Hon’ble Supreme Court in Seth Ratan Chand vs. Pandit Durga Prasad 2003 AIR SCW 3078 held that such a course of action may enable a litigant to defeat the provisions of the statute which may provide for certain conditions for filing the appeal. like limitation, payment of Court fees or deposit of some amount or fulfilment of some other conditions for entertaining the appeal.
In Bombay Metropolitan Region Development Authority vs. Gokak Patel Bolkart Ltd. & Ors. 1995 (1) SCC 642, the Hon’ble apex Court held that the writ petition filed during the pendency of the petitioner’s appeal before the statutory authority is not maintainable. The appellant undisputedly filed the writ petition in the matter after it has already filed the appeal against the order of the IT Department of the assessing authority before the CIT(A), IT Department.
7. It is true that the appeals filed by the appellant against the earlier assessment orders are not decided by the appellant authority. Still we fail to see any justification in the action of the State Bank of Bikaner and Jaipur to file the writ petition and then to file this special appeal against the interim order of the learned Single Judge vacating the interim stay earlier granted. The IT Department may or may not be correct to charge the income-tax from the State Bank of Bikaner & Jaipur in the matter, how far it is justified for it to file the writ petition and appeal. On its success in the appeal/appeals whatsoever amounts recovered by the IT Department from it of the income-tax, penalty or interest, are to be refunded back to it with interest. In case the appellate authority of IT Department does not decide the appeals filed by the appellants within a reasonable time, we can appreciate of filing of writ of mandamus by the Bank to this Court for direction to the said authority to decide the same at an early date but not this writ petition and that too of the bulky record and then this bulky record appeal against the order of the learned Single Judge under which the interim relief granted earlier has been vacated.
8. We also fail to appreciate the action of the IT Department to sit over the appeals filed by the assessee-appellant. The appeals are to be decided within a reasonable time. The IT Department appears to concern only to raise demand and recover the taxes and seldom bother to decide the appeals expeditiously and to refund the amount of the tax found paid excess by assessee. Thus, on merits also the appellant has no case.
9. As a result of the aforesaid discussion this appeal fails and the same is dismissed.
10. Before parting with the order we cannot resist ourselves to state that the State Bank of Bikaner & Jaipur to take all care that unnecessary people’s money is not wasted and spent by it in a litigation which is wholly avoidable, uncalled for and undesirable. Litigation is not a luxury, fun or amusement.
11. Here in this case to be stated at the cost of repetition the grievance of bank is that the IT Department is not deciding the appeal expeditiously for which the litigation was not called for. The appellate authority of the IT Department where the appeals of the State Bank of Bikaner & Jaipur are pending, is directed to decide the same within a period of three months from the date of receipt of the copy of this order.
12. In an avoidable, uncalled for and unnecessary litigation, the IT Department is dragged in the Court by the State Bank of Bikaner & Jaipur and thus cost is to be imposed upon it. Accordingly, the State Bank of Bikaner & Jaipur is directed to pay Rs. 2,000 (Rs. two thousand) as costs to the IT Department, Jaipur. The amount of costs is to be deposited in the IT Department by account payee cheque/DD/Pay Order, within a period of one month from the date of receipt of the copy of this order.
[Citation : 270 ITR 271]
