Sudheer Kumar Pokharna, Huf V. Union Of India, Through Secretary, Department Of Revenue, Ministry Of Finance, North Block, New Delhi - 110001 and The Assistant Commissioner Of Income Tax, National E- Assessment Centre, Income Tax Department, Ministry Of Finance, Delhi and The Assistant Commissioner Of Income Tax, Acit Circle, Chittorgarh (Raj.)

CW/14927/2021

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The case involves Sudheer Kumar Pokharna, HUF, who challenged an assessment order dated 21st September 2021 through a writ petition. The Income Tax Department objected to the maintainability of the writ petition, citing the availability of an alternative remedy under Section 246-A of the Income Tax Act. The petitioner argued that the availability of an alternative remedy does not oust the jurisdiction of the High Court. The court examined precedents and found them distinguishable from the present case, emphasizing that the writ court should not interfere when an effective alternative remedy is available, especially in matters involving recovery of tax. The court dismissed the writ petition, allowing the petitioner to appeal under the specified section.

• Counselvise Citation: [2024] 140 COUNSELVISE.COM (IT) 809031 (HC-RAJASTHAN)
• Appeal Type: Others
• Pronouncement Date: 03-09-2024
• Assessment Year: misc
• Other Referred Cases: Smt. Mema Paul and Ors. v. Income Tax Officer & Ors., M/s Magick Woods Export Private Limited v. Additional/Joint/Deputy/Assistant Commissioner of Income Tax/Income Tax Officer & Ors., M/s Godraj Sara Lee Ltd. v. The Excise and Taxation Officer-Cum- Assessing Authority & Ors., United Bank v. Satyawati Tondon & Ors.
• Laws Referred To: Income Tax Act
• Result in Favour of: Revenue
• Court: HIGH COURT
• Department Lawyers: K K BISSA
• Assessee Lawyers: VANDANA BHANSALI; YUVRAJ SINGH
• Keywords: Alternative remedy; Assessment Order; Jurisdiction; Maintainability; Natural Justice; Writ petition
• Section: 148; 142(1); 143(2); 246 A

Judgement Text

"[2024:RJ-JD:36655-DB] HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JODHPUR D.B. Civil Writ Petition No. 14927/2021 Sudheer Kumar Pokharna, Huf, Pratap Nagar Main Road, Chittorgarh (Raj.) Through The Karta Sh. Sudheer Kumar Pokharna S/o Gottam Lal Pokharna, Age 46 R/o Pratap Nagar, Chittorgarh. ----Petitioner Versus 1. Union Of India, Through Secretary, Department Of Revenue, Ministry Of Finance, North Block, New Delhi - 110001 2. The Assistant Commissioner Of Income Tax, National E- Assessment Centre, Income Tax Department, Ministry Of Finance, Delhi. 3. The Assistant Commissioner Of Income Tax, Acit Circle, Chittorgarh (Raj.) ----Respondents For Petitioner(s) : Ms. Vandana Bhansali Mr. Yuvraj Singh For Respondent(s) : Mr. K.K. Bissa HON'BLE MR. JUSTICE SHREE CHANDRASHEKHAR HON'BLE MR. JUSTICE KULDEEP MATHUR Order 03/09/2024 The assessment order dated 21st September 2021 has been challenged by the assessee by filing this writ petition. 2. At the outset, Mr. K.K. Bissa, the learned counsel for the Income Tax Department raised an objection to the maintainability of this writ petition. 3. The objection raised by Mr. K.K. Bissa, the learned counsel for the Income Tax Department is based on the provisions under [2024:RJ-JD:36655-DB] (2 of 4) [CW-14927/2021] Section 246-A of the Income Tax Act which provides a forum of appeal to the assessee to challenge the assessment order. 4. The learned counsel for the petitioner submitted that the mere availability of an alternative remedy of appeal would not oust the jurisdiction of this Court and render the present writ petition not maintainable. She thus prayed that the present writ petition may be heard on merits. In support of her contention, the learned counsel placed reliance on “Smt. Mema Paul and Ors. v. Income Tax Officer & Ors.: WP (C) No.626 of 2007”, “M/s Magick Woods Export Private Limited v. Additional/Joint/Deputy/Assistant Commissioner of Income Tax/Income Tax Officer & Ors.: W.P. No. 10693 of 2021 & WMP Nos. 11326 and 11327 of 2021” and “M/s Godraj Sara Lee Ltd. v. The Excise and Taxation Officer-Cum- Assessing Authority & Ors.” reported in AIR 2023 SC 781. 5. In our opinion, these decisions are not relevant in the facts of the present case, inasmuch as, in “M/s Godraj Sara Lee Ltd.” the issue decided by the Hon’ble Supreme Court was that the writ Court should not refuse to interfere in the matter on the ground that no exceptional case was made out for not availing the alternative remedy. In fact, the decision in “M/s Godraj Sara Lee Ltd.” turns on its own peculiar facts. Similarly, the decisions in “M/ s Magick Woods Export Private Limited” and “Smt. Mema Paul and Ors.” are quite distinguishable on facts. We are not required to elaborate upon this issue that the rules of natural justice cannot be confined in a strait-jacket and the applicability of those rules would depend on the facts and circumstances in a particular case. This also is well remembered that the writ Court ordinarily shall not entertain a petition under Article 226 of the Constitution of [2024:RJ-JD:36655-DB] (3 of 4) [CW-14927/2021] India if an effective remedy is available to the aggrieved party and that rule shall apply with greater rigor in the matters involving recovery of tax, cess, fee and other types of public money (refer, “United Bank v. Satyawati Tondon & Ors.” reported in (2010) 8 SCC 110). 6. While we agree with Ms. Vandana Bhansali, the learned counsel for the petitioner that a writ petition shall be entertained notwithstanding the available alternative remedy to the aggrieved party in a situation where the order has been passed in breach of natural justice or the authority had no jurisdiction, we are not inclined to interfere in this matter primarily for the reason that the assessee had sufficient knowledge and information about the pending proceedings. The submission that an application for three days’ adjournment was made which was not decided by the Assessing Authority, in our opinion, was a correct decision taken by the Assessing Authority. 7. The petitioner has pleaded that he filed the return for A.Y. 2015-16 on 31st August 2015 for a total income of Rs.18,94,320/-. A notice under section 143 (2) of the Income Tax Act, 1961 was issued to him on 17th August 2016 as his case came under scrutiny through the Computer Assisted Scrutiny Selection. The petitioner further pleads that a notice was issued on 30th May 2019 under section 148 proposing re-assessment for the A.Y. 2015-16 and, in response thereof, he filed a detailed ITR on 2nd July 2019. According to the petitioner, a notice was again issued to him on 29th July 2021 and this time under section 142 (1) requiring him to furnish the accounts and documents specified therein, to which he replied on 1st March 2021 and 14th March 2021. However, a [2024:RJ-JD:36655-DB] (4 of 4) [CW-14927/2021] show cause notice was issued to him on 17th September 2021 requiring him to furnish his response on or before 20th September 2021. Though the petitioner has pleaded that he sent a request for adjournment through e-mail seeking three days’ further time for responding to the notice dated 17th September 2021, on a glance at the document furnished by the petitioner vide annexure- 7, we gather that an e-mail was sent by the petitioner on 22nd September 2021 on 09:19 A.M. 8. In the present proceedings, except laying a challenge to the assessment order on the ground that adjournment was not granted, no other circumstance pertaining to breach of natural justice has been pleaded by the assessee. In our opinion, other plea which the assessee may raise can very well be raised before the appellate authority which shall have the benefit of the complete records. 9. Therefore, the present D.B. Civil Writ Petition No. 14927/2021 is dismissed reserving a liberty to the petitioner to prefer an appeal as provided under Section 246-A of the Income Tax Department. (KULDEEP MATHUR),J (SHREE CHANDRASHEKHAR),J 127-divya/mohit- "