Rajendra Singh Raghuwanshi vs. The Commissioner Of Income Tax Appeals Ii

WP/3070/2012HC Madhya Pradesh02 May 2012Bench: HON'BLE SHRI JUSTICE AJIT SINGH2 pages

For Petitioner: Abhishek Oswal,Ashok OswalFor Respondent: Sanjay Lal, (R1)

AI SummaryRemanded

What did the High Court hold?

The Tribunal noted that while the existence of an alternative remedy does not bar a person from invoking writ jurisdiction, a petitioner who has already availed of the alternative remedy cannot pursue parallel remedies. In view of the statement by the revenue's counsel that the pending appeal would be decided expeditiously, and acknowledging that the petitioner had already availed the alternative remedy, the writ petition was disposed of. The appellate authority was directed to decide the appeal in accordance with law, preferably within three months. Until the decision, the interim relief granted by this court on 07.03.2012 was to remain in operation. The Tribunal did not decide the merits of the grounds of challenge regarding limitation or jurisdiction.

What were the facts?

The petitioner, aggrieved by an assessment order dated 12.12.2011, filed a writ petition challenging its validity on grounds of limitation and lack of jurisdiction of the Assistant Commissioner of Income Tax, citing a notification dated 05.07.2011. The petitioner also challenged an order dated 25.01.2012 from the respondent no. 1 directing a 50% deposit of the demand for appeal consideration. The respondents argued that the writ petition was not maintainable as the petitioner had already availed the statutory remedy of appeal, which was pending. The petitioner contended that an interim order dated 07.03.2012 from this court had stayed the appellate authority's order on the stay application, and that there was no undisputed tax liability.

What were the issues?

1. Whether the writ petition is maintainable when the petitioner has already availed the statutory alternative remedy of appeal against the assessment order. 2. Whether the assessment order is barred by limitation. 3. Whether the Assistant Commissioner of Income Tax had the jurisdiction to pass the assessment order in light of the notification dated 05.07.2011. 4. Whether the order directing deposit of 50% of the demand for appeal consideration is without jurisdiction. Assessee's Contentions: The assessment order was barred by limitation and passed without jurisdiction. The order directing deposit of 50% of the demand was without jurisdiction. The petitioner had invoked the writ jurisdiction and an interim order dated 07.03.2012 had stayed the appellate authority's order on the stay application. Revenue's Contentions: The writ petition is not maintainable as the petitioner has already availed the statutory alternative remedy of appeal, which is pending. The appeal shall be decided expeditiously.

AI-generated summary — verify with the full judgment below

W.P. No. 3070/12 02.05.2012 Shri G.N. Purohit, learned Sr. counsel with Shri Abhishek Oswal, for the petitioner. Shri Sanjay Lal, learned counsel for the respondents. Heard. The petitioner has filed this petition being aggrieved by orders of assessment dated 12.12.11 on the ground that the assessment could not have been made by the respondents as it was barred by limitation. By filing I.A. No. 5208/12, the petitioner has also stated that in view of the notification dated 05.07.2011 issued by the Government of India, Ministry of Finance (Department of Revenue), the Assistant Commissioner of Income Tax, who has passed the order of assessment, has no jurisdiction to do so. The petitioner has also assailed the order dated 25.01.12 passed by the respondent no. 1 directing the petitioner to deposit 50% of the demand in 10 equal monthly instalments subject to which the appeal against the order of assessment shall be considered. The respondents have filed a return and objected to the maintainability of the petition on the ground that the petitioner has already availed the statutory alternative remedy by way of filing an appeal against the order of assessment which is pending decision and in such circumstances, the petition filed by the petitioner be dismissed. It is a settled law that though the existence of an alternative remedy does not bar the person from invoking the remedy of a petition but in such cases as the present one where the petitioner has already availed of the alternative remedy, he cannot be permitted to pursue parallel remedies by filing a petition. At this stage learned senior counsel for the petitioner submits that the impugned order passed by the appellate authority on the application for stay has been stayed by this court by interim order dated 7th of March, 2012. He submits that as there is no undisputed liability to pay tax upon the petitioner, therefore, the order of the appellate authority passed on the application for stay is without jurisdiction. It is submitted by the learned counsel for the respondents that the appeal filed by the petitioner shall be decided expeditiously, in accordance with law, preferably within a period of three months. Be that as it may, in view of the aforesaid statement made by the learned counsel for the respondents and also the fact that the petitioner has already availed of the alternative remedy by filing an appeal which is pending decision before the appellate authority, the writ petition is disposed of with a direction to the appellate authority to decide the appeal in accordance with law, as far as possible within a period of three months and till decision thereon, interim relief granted by this court by order dated 7th of March, 2012 shall continue to remain in operation. With the aforesaid directions, the writ petition stands disposed of. (Ajit Singh) (R.S. Jha) Judge Judge msp

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