An aggrieved party is not required to exhaust all remedies available under a revenue statute, including a reference under Section 256 of the Income Tax Act, before approaching the court under Article 226 of the Constitution of India, where the remedy is not a right of the aggrieved party and the matter would ultimately end up before the court.

I.S.Tiwana, J.

1. The petitioner-firm, which, though is a registered firm, has been assessed as an unregistered firm for the assessment year 1971-72, by the Income-tax Officer (ITO) for the reason that it failed to file the prescribed Form No. 12 within the time prescribed under Section 139 of the I.T. Act (for short "the Act"). The explanation of the firm for this delayed filing of the declaration on account of its lack of knowledge about the amendment of prov. (ii) to Section 184(7) of the Act with effect from April 1, 1971, was not accepted as bona fide. On an appeal against this order of the ITO before the Appellate Assistant Commissioner (AAC), the conclusion recorded by ITO was affirmed. However, on further appeal, before the Income-tax Appellate Tribunal, the Tribunal disagreed with the abovenoted conclusions of the lower authorities and concluded the matter thus in favour of the assessee :

"So far as the question of existence of sufficient cause for the delay under consideration is concerned, we do not agree with the Appellate Assistant Commissioner that the fact of declaration having been signed on 3-9-1971, was determinative of the assessees knowledge of the changed law requiring the filing of the declaration by 30-9-1971, even if the return of income was filed later. Thus, there is no material on record to warrant rejection of the assessees plea as to its bona fide belief that the declaration in question could be filed along with the return of income as under the law effective until 13-3-1971. The assessee succeeds."

2. But still, the appeal of the petitioner was dismissed by the Tribunal on the ground that the appeal before the AAC itself was not competent and, therefore, the appeal before the Tribunal was not competent. It is this later part of the order of the Tribunal which is now impugned in this petition.

3. It is not a matter of dispute now that in view of the Division Bench judgment of this court in CIT v. Mothooram Premchand [1980] 121 ITR 59, it has to be held that the appeal before the AAC against the impugned order of the ITO was competent and to that extent, the later part of the impugned order of the Tribunal has to be set aside. Learned counsel for the respondents, however, raises two objections, firstly, the petition deserves to be dismissed as the petitioner failed to exhaust all the remedies available under the Act and, secondly, the abovenoted judgment in Premchands case [1980] |2I ITR 59 (P & H) is not correct.

4. In support of his first contention, learned counsel makes a reference to C. A. Abraham v. ITO [1961] 41 ITR 425 (SC), Shivam Poddar v. ITO [1964] 51 ITR 823 (SC), and Munshi Ram v.. Municipal Committee, Chheharta [1979] 118 ITR 488 (SC), and contends that where a complete machinery has been prescribed by a revenue statute, a party to the litigation has to exhaust all the remedies provided for and cannot approach this court under art. 226 of the Constitution of India without exhausting those remedies. To be precise, the contention of the learned counsel is that the remedy of reference against the order of the Tribunal under Section 256 Df the Act was available to the petitioner and he having failed to avail the same, should be non-suited on that ground alone.

5. Having given my thoughtful consideration to the entire matter in the light of the above-noted judgments of the Supreme Court, I find that in the given facts and circumstances of this case, no weight can be attached to these contentions of the learned counsel. It is true that in the normal course the remedies provided for an aggrieved party by a statute, and particularly by a revenue statute, have to be availed of or exhausted by that party before invoking this extraordinary jurisdiction, yet, to my mind that can only be said in the context where the remedies are available to the party aggrieved as a matter of right. In case the petitioner is directed to ask for a reference under Section 256 of the Act, it will strictly be