Omprakash Bagdia (HUF) vs Commissioner of Income Tax and Others

A.M. Sapre, J.—The petitioner--an Income Tax assessee seeks to challenge the order, dated May 14, 2003 (annexure P 8), passed by the Commissioner of Income Tax (Appeals) in this writ. So the question that arises for consideration in this writ is, whether this court should entertain the writ or decline to entertain it on the ground of availability of alternative remedy of appeal u/s 253 of the Income Tax Act to the Appellate Tribunal ?

Heard Shri P.M. Choudhary, learned counsel for the petitioner, on the question of admission.

Having heard learned counsel for the petitioner and having perused a record of the case, I am not inclined to entertain the writ as in my opinion, the petitioner has an alternative remedy of appeal available to get rid of the impugned first appellate order.

It is indeed a well settled rule of law judicially so recognised by a series of decisions of the Supreme Court that when an aggrieved person has statutory remedy available to get rid of the order, then the said remedy must be availed of in the first instance before filing a writ under Articles 226 and 227 of the Constitution of India. In other words, no writ should be entertained when the aggrieved has a remedy of appeal to be availed of. It is indeed a rule of prudence rather than that of bar.

I have not been able to find any redeemable feature in this case which will enable me to deviate from the aforesaid principle of law.

It is not in dispute that the impugned order is passed by the Commissioner (Appeals) in exercise of his appellate powers conferred u/s 251 of the Act in an appeal filed by the petitioner. Such an order is appealable u/s 253 of the Act to the Appellate Tribunal. Sub-section (5) of Section 253 empowers the Appellate Tribunal to condone the delay in filing appeal, if it is delayed. The petitioner has a further remedy of second appeal u/s 260A of the Act to the High Court against the order of the Tribunal and then lastly to the Supreme Court under Article 136 of the Constitution of India. In other words, the Act provides for a specific and complete forum of remedies to be resorted to and hence it would not be in the fitness of things to entertain the writ.

I, therefore, do not find any merit in the writ. Indeed, once I hold that the writ is not entertainable, it is not necessary for me to examine the merits and demerits of the issue sought to be urged in support of this writ. It is for the Tribunal to examine the issue, if occasion so arises in appeal in accordance with law.

The petition, thus, fails and is dismissed in limine by granting liberty to the petitioner to file appeal, as observed supra.

C. C. within a week.