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1 IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 19TH DAY OF SEPTEMBER, 2019
BEFORE
THE HON’BLE MR. JUSTICE P.B. BAJANTHRI
WRIT PETITION No.30147/2019 (T-IT)
BETWEEN:
Shree Mangalajyothi Vivdhoddesha Sahakara Sangha Ltd., Battagudda, Bejai, Mangaluru, (D.K. District) – 575 004. Represented by its Secretary – Mr.Udaya R.
…Petitioner
(By Sri. Mahesh R Uppin, Advocate)
AND:
Dy. Commissioner of Income Tax, Centralized Processing Centre, Bengaluru – 560 500.
Income Tax Officer, Ward – 1(3),
Aayakar Bhavan, Attavara, Mangaluru – 575 001. ... Respondents
(By Sri. Jeevan R Neeralgi, Advocate a/w Sri. E.I.Sanmathi, Advocate)
This Writ Petition is filed under Articles 226 and 227 of the Constitution of India praying to quash the order dated 31.05.2019 marked as Annexure – ‘B’ and
2 the order dated 28.06.2019 marked as Annexure – ‘C’, both the orders passed by the R-1, by issuing a writ in the nature of certiorari.
This Writ Petition coming on for Preliminary Hearing in ‘B’ group, this day, the Court made the following:
ORDER
The petitioner has sought for following reliefs:- (i) Quash the Order dated 31.05.2019 bearing No.CPC/1819/A5/1872348869 marked as Annexure “B” and the order dated 28.06.2019 bearing No.CPC/1819/U5/1904640560 marked as Annexure “C” both the orders passed by respondent No.1, by issuing a writ in the nature of Certiorari; (ii) Issue writ in the nature of mandamus directing for fresh assessment of the I.T.Return filed by the petitioner in respect of A.Y.2018-19 marked Annexure-A, by respondent No.2 in accordance with law and to complete the assessment within a period of two months; and
3 (iii) Grant such other relief as may be deemed fit to grant under the circumstances of the case in the interest of equity and justice.”
Undisputedly petitioner has statutory remedy under Section 246 of Income Act, 1961 (for short ‘the Act’).
The learned counsel for the petitioner submitted that petitioner need not exhaust the remedy of appeal in event of non compliance of Section 143 (1) of the Act. Whereas, time and again Courts have held that writ could be entertained if any order is passed without authority of law. As is evident from the statutory provision, Section 246 of the Act, which provides for appeal against the impugned order, the Hon’ble Supreme Court in the case of State of Jammu and Kashmir vs. R.K.Zalpuri and others reported in AIR 2016 SC 3006, has held as under:- “20. Having stated thus, it is useful to refer to a passage from City and Industrial
4 Development Corporation v. Dosu Aardeshir Bhiwandiwala and Others, wherein this Court while dwelling upon jurisdiction under Article 226 of the Constitution, has expressed thus:- 6. (2009) 1 SCC 168: (AIR 2009 SC 571). “The Court while exercising its jurisdiction under Article 226 is duty-bound to consider whether: (a) adjudication of writ petition involves any complex and disputed questions of facts and whether they can be satisfactorily resolved; (b) the petition reveals all material facts; (c) the petitioner has any alternative or effective remedy for the resolution of the dispute; (d) person invoking the jurisdiction is guilty of unexplained delay and laches; (e) ex facie barred by any laws of limitation; (f) grant of relief is against public policy or barred by any valid law; and host of other factors.”
In view of the principle laid down by the Hon’ble Supreme Court, petitioner has alternative remedy before the appropriate forum. Therefore, writ petition is disposed of reserving liberty to the petitioner
5 to file an appeal before the Appellate Authority. If there is any delay, in such an event, petitioner is permitted to make necessary application for condonation of delay in memorandum of appeal to the Appellate Authority and the Appellate Authority is directed to consider the delay application.
Sd/- JUDGE MH/-