The Tehsildar, Village \\u2013 Sayala V. Union of India & Others

SAW/982/2011

AI Insights

The case involves an appeal by the Tehsildar of Sayala against the Union of India and others, challenging the dismissal of a writ petition by a learned Single Judge. The writ petition was initially dismissed on the grounds that the appellant had an alternative remedy available under Section 246-A of the Income Tax Act, which allows for an appeal against the imposition of a penalty under Chapter XXI of the Act. The appellant contested the dismissal, but the Division Bench upheld the decision, reinforcing the principle that statutory remedies should be exhausted before resorting to writ petitions under the Constitution.

• Counselvise Citation: [2012] 140 COUNSELVISE.COM (IT) 815334 (HC-RAJASTHAN)
• Appeal Type: Others
• Pronouncement Date: 06-01-2012
• Assessment Year: misc
• Laws Referred To: Income Tax Act
• Result in Favour of: Revenue
• Court: HIGH COURT
• Assessee Lawyers: NK JAIN
• Keywords: Alternative remedy; Appeal; Income Tax; Penalty; Writ petition
• Section: 134; 246 A; 271 FA

Judgement Text

"1 IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JODHPUR. JUDGMENT D.B. SPECIAL APPEAL (W) NO.982/2011 THE TEHSILDAR, VILLAGE – SAYALA V. UNION OF INDIA & OTHERS. DATE OF JUDGMENT ::: 06.01.2012 HON'BLE MR. JUSTICE A. M. SAPRE HON'BLE MR. JUSTICE C. M. TOTLA Mr. N.K.Jain, for Appellant (s). BY THE COURT: This appeal is filed under Rule 134 of the Rajasthan High Court Rules by the writ petitioner (appellant herein) against an order dated 04.05.2011 passed in S. B. Civil Writ Petition No.3115/2010, The Tehsildar, Sayala v. The Union of India & Ors. With the express consent of learned counsel for the appellant, the appeal is heard finally and decided at the admission stage itself. By impugned order, the learned Single Judge dismissed the writ petition filed by the appellant on the ground that remedy of the appellant (writ petitioner) to challenge the impugned order dated 18.08.2009 passed by the Director of Income-tax (CIB), Rajasthan, Jaipur under Section 271-FA was by filing an appeal under Section 246-A of the Income Tax Act. So, the question for consideration, in this appeal, is as 2 to whether the learned Single Judge was justified in dismissing the writ petition on the ground of availability of an alternative remedy to the writ petitioner to challenge the order impugned in the writ petition. The order of the learned Single Judge reads as under :- “Having heard the learned counsel for the petitioner and having perused the material placed on record, particularly when it is an admitted position that the order impugned is open to appeal under Section 246 A of the Income Tax Act, 1961, this Court finds no reason to entertain this writ petition for availability of efficacious and statutory remedy of appeal. Accordingly, this writ petition stands dismissed.” As mentioned supra, the learned Single Judge dismissed the writ petition filed by the appellant essentially, on the ground of availability of an alternative remedy of an appeal to be filed by the appellant (writ petitioner) before the Commissioner of Appeals under Section 246-A (q) of the Income Tax Act against the order dated 18.8.2009 passed by Director of Income-tax. In our view, since the impugned order admittedly, was passed under Section 271-FA of the Act and Section 271- FA falls under Chapter XXI and, therefore, appellant can take recourse to filing an appeal against the said order under Section 246-A (q) of the Act which reads as under :- “246A. (1) Any assessee aggrieved by any of the following orders (whether made before or after the appointed day) may appeal to the Commissioner (Appeals) against - (a) to (p) ...... ........ ........ ...... ..... ..... (q) an order imposing a penalty under Chapter XXI.” 3 In our view, therefore, the learned Single Judge did not commit any error while dismissing the writ petition of the appellant on the ground of availability of an alternative remedy of appeal as mentioned supra. It is a trite principle of law that if an alternative statutory remedy of filing an appeal under an Act is available to an aggrieved, then remedy of writ petition under extraordinary jurisdiction of High Court under Article 226/227 of the Constitution should not be resorted to and the aggrieved should take recourse to filing an appeal as provided under the Act. Depending upon the outcome of the appeal, further remedy, if provided under the Act can be resorted to under the Act. In absence of statutory remedy, a writ petition can be filed. Such is not the case here. We follow this principle in letter and spirit in the facts of this case and accordingly uphold the order of learned Single Judge. The appeal, therefore, is found to be devoid of any merit. It, thus fails and is dismissed in limine. (C. M. TOTLA), J. (A.M.SAPRE), J. scd "