Judicial prudence requires courts to refrain from exercising jurisdiction under Article 226 when alternate statutory remedies are available.

JUDGMENT

Mr. Sanjeev Prakash Sharma, J. (Oral)

Learned counsel for the petitioner vehemently argued in terms of the judgments passed by the Hon'ble Supreme Court in case Calcutta Discount Co. Ltd. v. Income Tax Officer, Companies District I, Calcutta and another (Civil Appeal No. 197 of 1954, date of decision 01.11.1960), to submit that the High Court can investigate existence of one of the conditions for exercise of jurisdiction under Section 34 of the Income Tax Act, 1961 (for short "the Act of 1961"), whereas learned counsel appearing on behalf of the respondents has invited attention to the judgment passed by the Hon'ble Apex Court in The State of Maharashtra and others v. Greatship (India) Limited 2022(13) Scale 770 as well as The State of Madhya Pradesh and another v. M/s Commercial Engineers and Body Building Company Limited 2022(14) Scale 920, to submit that availability of alternate statutory remedy would be a sufficient ground of judicial prudence to refrain from exercising jurisdiction under the constitutional provisions.

2. Learned counsel for the petitioner submits that the Assessing Officer (AO) has failed to give sufficient time to the petitioner while issuing notice under Section 69C of the Act of 1961 but the same has been issued under Section 148 of the Act of 1961 (Annexure P-12) although the petitioner has filed reply but the same has not been considered before passing of the impugned order dated 23.01.2024 (Annexure P-13). He further submits that the provisions of Section 69C read with Section 115BBE of the Act of 1961 could not be invoked and the show cause notice did not refer to the said provisions.

3. We have considered the submissions and the order passed by a co-ordinate Bench of this Court and find that the petitioner has challenged the assessment order dated 23.01.2024 (Annexure P-13) passed under Section 147 read with Section 144B of the Act of 1961 and further the arguments raised in the present writ petition can be ably considered by examining the record. Considering that factual aspects are involved, this Court would refrain from entering into a fishing enquriy while examining a case under writ jurisdiction. We also notice that the judgment cited by the learned counsel of Full Bench of the Hon'ble Supreme Court of India in Calcutta Discount Co. Ltd. (supra) is with regard to the issue where the concerned Income Tax Officer acted without jurisdiction and in these circumstances Supreme Court held that the writ Court may entertain a plea challenging such assessments done without jurisdiction.

4. The Hon'ble Supreme Court in case of The State of Maharashtra and others v. Greatship (India) Limited (supra) has examined the issue at length after referring to the law as laid down by the Apex Court from time to time and thus held as under:-

7. Applying the law laid down by this Court in the aforesaid decision, the High Court has seriously erred in entertaining the writ petition under Article 226 of the Constitution of India against the assessment order, bypassing the statutory remedies.

8. Now so far as the reliance placed upon the decisions of this Court by the learned Senior Advocate appearing on behalf of the respondent, referred to hereinabove, are concerned, the question is not about the maintainability of the writ petition under Article 226 of the Constitution, but the question is about the entertain ability of the writ petition against the order of assessment by-passing the statutory remedy of appeal. There are serious disputes on facts as to whether the assessment order was passed on 20.03.2020 or 14.07.2020 (as alleged by the assessee). No valid reasons have been shown by the assessee to by-passing the statutory remedy of appeal. This Court has consistently taken the view that when there is an alternate remedy available, judicial prudence demands that the court refrains from exercising its jurisdiction under constitutional provisions.

9. In view of the above and in the facts and circumstances of th