HASMUKHLAL THAKERSY THAKKAR vs. COMMISSIONER OF INCOME TAX (APPEALS-I)

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SCA/8661/1997HC GujaratGJHC24018187199715 February 2000Author: HONOURABLE DR. JUSTICE J.N.BHATT,HONOURABLE MR. JUSTICE C.K.BUCH2 pages

AI SummaryDismissed

What did the High Court hold?

The High Court held that the petition under Article 226 of the Constitution of India should not be entertained. The court found merit in the preliminary objection raised by the revenue. It reasoned that in the absence of any peculiar facts or special circumstances, the assessee should be relegated to the statutory remedy available before the Income Tax Appellate Tribunal. The court distinguished this case from another matter heard on the same day where a departure from the normal practice was made due to significant factual scenarios, procedural lapses, and non-application of mind, coupled with the fact that the matter had been admitted long before. In the present case, considering the facts and circumstances and the tenor of the impugned order, the court found no justifiable ground to exercise its extraordinary powers under Article 226. Therefore, the petition was dismissed on the preliminary ground.

What were the facts?

The assessee, Hasmukhlal Thackersy Thakkar, filed a Special Civil Application before the High Court of Gujarat challenging an order dated 12.8.97 passed by the Commissioner of Income Tax (Appeals-I). The assessee contended that the impugned order was not a speaking order as required by the Income Tax Act, 1961. The respondent, Commissioner of Income Tax, raised a preliminary objection, arguing that the petition under Article 226 of the Constitution of India should not be entertained as an alternative statutory remedy was available before the Income Tax Appellate Tribunal.

What were the issues?

1. Whether the High Court should entertain a writ petition under Article 226 of the Constitution of India when an alternative statutory remedy is available before the Income Tax Appellate Tribunal against the impugned order of the appellate authority. Assessee's Contention: The assessee argued that the order passed by the Commissioner of Income Tax (Appeals-I) was not a speaking order, implying a procedural defect that might warrant High Court intervention. The specific provision of the Income Tax Act, 1961, that requires a speaking order is implicitly challenged. Revenue's Contention: The revenue contended that the petition under Article 226 should not be entertained due to the availability of a statutory remedy before the Income Tax Appellate Tribunal. This contention hinges on the principle of alternative remedies.

Which sections of the Income-tax Act were involved?

Article 226

AI-generated summary — verify with the full judgment below

IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

SPECIAL CIVIL APPLICATION No 8661 of 1997

For Approval and Signature:

Hon'ble MR.JUSTICE J.N.BHATT and Hon'ble MR.JUSTICE C.K.BUCH

============================================================ 1. Whether Reporters of Local Papers may be allowed : NO to see the judgements?

To be referred to the Reporter or not? : NO 3. Whether Their Lordships wish to see the fair copy : NO of the judgement?

Whether this case involves a substantial question : NO of law as to the interpretation of the Constitution of India, 1950 of any Order made thereunder?

Whether it is to be circulated to the Civil Judge? : NO -------------------------------------------------------------- HASMUKHLAL THAKERSY THAKKAR Versus COMMISSIONER OF INCOME TAX (APPEALS-I) -------------------------------------------------------------- Appearance: MR NV ANJARIA for Petitioner MR MANISH R BHATT for Respondent No. 1

--------------------------------------------------------------

CORAM : MR.JUSTICE J.N.BHATT and MR.JUSTICE C.K.BUCH

Date of decision: 15/02/2000

ORAL JUDGEMENT The only challenge in this petition, at the instance of the original assessee, is against the decision of the respondent appellate authority, who has recorded the impugned order dated 12.8.97, contending that it is not a speaking order in terms of the provisions of Income Tax Act, 1961. Learned counsel for the respondent Mr Naik raised the preliminary objection contending that this petition under Article 226 of the Constitution of India, should not be entertained, where, the statutory remedy is available before the Income Tax Appellate Tribunal, against the impugned order of the appellate authority. In our opinion, in this case, this submission, merits acceptance, in absence of any peculiar facts or special circumstances. In another matter, to day, itself we have made a departure from the normal practice of relegating the parties to the statutory remedy available. But, therein, the factual scenario apart, the procedural lapses and non-application of mind had been successfully spelt out and more so when we had admitted the matter long before.

In the light of the facts and circumstances and considering the text and tenor of the impugned order, in our opinion, the petitioner should be relegated to avail the statutory remedy available against the impugned order as we do not find any justifiable ground or reason for exercising our extraordinary, plenary, equitable, discretionary powers under Article 226 of the Constitution of India.

With the result, the petition must fail on the preliminary ground raised by learned advocate Mr Naik. Only on that ground, this petition is dismissed without any order as to costs. Rule discharged.

.... (vjn)

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