The withdrawal or cancellation of a recovery certificate by the ITO under Section 224 of the Income Tax Act, 1961, renders the recovery proceedings invalid. However, the recovery certificate is not barred by limitation if the proceedings are commenced within the period prescribed under Section 46(7) of the Income-tax Act, 1922.

The following core questions have been pro­pounded in this application under Article 226 of the Constitu­tion :

(i) Whether on withdrawal or cancellation of the recovery certificate by the Income Tax Officer u/s. 224 of the Income-tax Act, 1961, for short, 'the Act' the Tax Recovery Officer can proceed with the recovery proceedings under 'the Act'? if so, whether, in the case in hand, the Income-tax Officer with­drew or cancelled the Recovery Certificate issued by him ?

(ii) Whether the impugned recovery certificate dated 12.4.1954 was barred u/s. 46 of the Income-tax Act, 1922, for short 'the Old Act' read with Sec. 231 of 'the New Act" ?

(iii) Whether the recovery proceedings under 'the Act' are void illegal and without jurisdiction in the absence of a valid and enforceable recovery certificate and, therefore, the procee­dings should be quashed, the respondents be prohibited from and ordered not to give effect to the acts or actions in the course of the recovery proceedings and/or grant appropriate relief to the petitioner including an order restoring the pro­perty sold in the recovery proceedings ?

2. The application of the doctrine of consummation of sta­tutory remedy as a bar to the exercise of the jurisdiction under Article 226 of the Constitution in fescues (fiscal) laws:

Dr. Saraf, learned counsel for the respondents has taken a preliminary objection that the application is not maintaina­ble. Learned counsel submits that the Income tax Act provides a complete machinery relating to assessment, levy and collec­tion of Income-tax and has also constituted forum for obtaining relief in respect of improper of erroneous orders made by the revenue authorities. On this premise it has been contended that this Court has no jurisdiction to entertain the writ petition directed against the impugned acts, actions and orders.

In short, learned counsel endeavors to apply the doctrine of exhaustion of statutory remedy as a bar to the exercise of juris­diction under Article 226 of the Constitution. It is true that the court has imposed a restraint in its own wisdom on its exercise of jurisdiction under Art. 226 where the party invoking the jurisdiction has an effective, adequate, alternative remedy. The limitation that before asking for relief under Art. 226 the party must exhaust the alternative remedy is nowhere to be found in the Constitution. It is a rule of convenience and discretion rather than rule of law. The existence of an alternative remedy does not oust the jurisdiction of the Court. In some illustrative cases the Supreme Court has directed the High Courts not to exercise the extra-ordinary jurisdiction under Art. 226 when an alternative remedy exists but in some other cases it has been ruled that the High Court is competent to exercise juris­diction notwithstanding existence of an alternative remedy. Where questions of infringement of fundamental rights arise, or where on undisputed facts the taxing authorities are shown to have assumed jurisdiction not vested in them by law or where the authorities have assumed jurisdiction which they do not poss­ess and the orders and direction result in give injustice to the party, the doctrine of consummation of statutory remedy may not be applicable. The exercise of power under writ juris­diction is discretionary and may be exercised where the order made, on the face of it, is erroneous, resulting in injustice. These are called from Shivram Poddar vs. I.T.O., AIR 1964 SC 1095; Sales Tax officer vs. Ratan, AIR 1966 SC 142; Telco vs. Assis­tant Commissioner, AIR 1967 SC 1401; Bhopal Sugar Industries. Limited vs. D.P. Dube, AIR 1667 SC 549; Gita Dtvi vs. C.I.T 76 1TR 196 (SC). In Hriday Narain vs. ITO AIR 1971 SC JJ, the Supreme Court has ruled that when the High Court and, tearstained the writ petition despite availability of an alterna­tive remedy & beard the parties on merits it would be unjust to dismiss the same on the ground of non-exhaustion of statutory remedies. In that case