AI Insights
The State of Himachal Pradesh filed a writ petition challenging certain orders and notices under the Income Tax Act, 1961. The petition was primarily contested on the grounds of being premature and infructuous, as the petitioners had already availed themselves of alternate statutory remedies by filing appeals which were subsequently dismissed by the CIT (Appeals) and the Income Tax Appellate Tribunal. The court found that the petitioners did not challenge the ITAT's decision in their writ petition and had not sought a stay of demand, leading to the conclusion that the writ petition was not the appropriate forum for redressal at this stage.
Appeal Details
Counselvise Citation
[2013] 140 COUNSELVISE.COM (IT) 727772 (HC-HIMACHAL_PRADESH)
Assessee PAN
Bench
Appeal Number
Appellant
Respondent
Appeal Type
Others
Pronouncement Date
23-07-2013
Assessment Year
misc
Judgement Text
"IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA. CWP No. 903 of 2009-B. Decided on: 23rd July, 2013. State of HP. and others. … Petitioners. Versus Chief Commissioner of Income Tax, Shimla and others. … Respondents. _________________________________________________________________ Coram The Hon’ble Mr. Justice A.M. Khanwilkar, Chief Justice The Hon’ble Mr. Justice Kuldip Singh, Judge. Whether approved for reporting? For the Petitioners: Mr. Shrawan Dogra, Advocate Genral with Mr. Romesh Verma, Addl. AG, Mr. A.K. Rattan, Addl. AG and Mr. J.K. Verma, DAG. For the Respondents: Mr. Diwan S. Negi, Advocate, vice counsel for respondents No.1 to 3. Mr. K.D. Sood, Senior Advocate, with Mr. Mukul Sood, Advocate, for respondent No.5. ----------------------------------------------------------------------------------------- Justice A.M. Khanwilkar, C.J. (Oral) Heard counsel for the parties. 2. By this petition, the State has challenged the orders, Annexures P-1 to P-4 dated 22nd February, 2008 and notices under Section 226 (3) of the Income Tax Act, 1961, Annexures P-5 to P-7 dated 29th January, 2009 and Annexures P-8 to P-10 dated 5th February, 2009, respectively. 3. In the reply-affidavit, preliminary objection has been taken in the following words: “1. That the present writ petition is premature and infructuous and is liable to be dismissed on the short ground alone that the petitioner has already availed the alternate statutory remedy and has filed an appeal against the impugned order before the Ld. CIT (Appeals), who has dismissed the same vide orders dated 25.2.2009 and 26.2.2009 and further the appeal was preferred by the petitioners before the Ld. Income Tax Appellate Tribunal and the same has been dismissed vide order dated 28.5.2009, copy of which is annexed herewith as Annexure R-1. A further Appeal lies before this Hon’ble Court under Section 260-A of the Income Tax Act in case a substantial question of law is involved in the case. Hence under the circumstances, the present writ petition is not maintainable, especially since the orders passed by the Ld. CIT(Appeals), and ITAT have 2 not been challenged by the petitioners in the present writ petition. 2. That though the petitioners have challenged the notices issued under Section 226(3) of the Income Tax Act in the present writ petition, no stay of demand has been sought from the appellate or Administrative authorities under the provisions of the Act. In view of the fact that the appeals have already been preferred against the impugned order which have since been decided it is always open to the petitioners to seek their remedy in accordance with law.” 4. Notwithstanding the preliminary objection, in writing, the petitioners have been advised to pursue the present petition. We are afraid, we cannot permit the petitioners to challenge the orders and notices without challenging the decision of the Income Tax Appellate Tribunal, passed on 28th May, 2009, against which, remedy of appeal under Section 260-A of the Income Tax Act, 1961, is available if the case involves substantial question of law. As a matter of fact, in the writ petition, no reference is made to the existence of order dated 28th May, 2009. The petitioner may and ought to have resorted to that remedy in right earnest. Notably, the petitioners have not prayed for stay of demand. In our opinion, therefore, this petition deserves to be disposed of with liberty to the petitioners to pursue statutory remedy, if so advised. In the event the petitioners resort to statutory remedy within four weeks from today, the respondents cannot be heard to complaint about that remedy being barred by limitation. In that case, the proposed proceedings will have to proceed on its own merits and in accordance with law, expeditiously. 5. The petition is disposed of on the above terms. (A.M. Khanwilkar), Chief Justice. 23rd July, 2013. (Kuldip Singh), (karan/tr) Judge. 3 "
