The main legal point established in the judgment is that the remedy under taxing law is a statutory remedy and not an alternative remedy.

JUDGMENT :

1. In each of these writ petitions, the petitioner had questioned the Assessment Orders, as it had been passed by the respondents for the assessment years 2016-17, 2015-16, 2014-15, 2013-14 and 2017-18 respectively, as it engages consideration in all the writ petitions, referred to above. As a consequence of the proceedings, which was drawn under Section 147 to be read with Section 144B of the Income Tax Act, as passed by respondent No. 4, assessing the petitioner’s the consequential recovery of penalty has been resorted to by initiation of the proceedings under Section 271(1)(b) and Section 271(1)(c) by the impugned orders passed by the respondents.

2. It is not in controversy, that as against the respective Assessment Orders for the respective Financial Years referred to in the relief ‘a’, of each of the writ petitions, the petitioner had already invoked an Appellate Forum, and has filed an Appeal, which are still pending consideration before the appellate authority, and has not yet been adjudicated on its own merits.

3. During the pendency of the Appeal itself, the petitioner herein had filed a Stay Application, for the grant of an interim relief, as against the respective Assessment Order, which was the subject matter of judicial scrutiny, before the Appellate Forum, but the Appellate Authority had declined to grant an interim order, on the ground, that as per the Office Memorandum No. 404/72/93/ITCC, as it had been issued by the Ministry of Finance on 29th February 2016, it stipulated a precondition, that on a preference of an Appeal against an order of assessment, the pre-condition for the grant of interim relief would be subject to depositing of the 20% of the disputed demand of tax, where the demand is contested before the CIT(A). Consequent to non-fulfilment of the conditions, as provided by the Office Memorandum dated 29th February 2016, the Stay Application of the petitioner has been rejected by the Appellate Authority, by one of the impugned orders, which are under challenge in the present writ petitions.

4. In accordance with the Policy itself, if sub-clause (c) of clause (4) of the Policy is taken into consideration, it provides, that if an assessee is aggrieved by the approach of the CIT(A) or CIT itself, he may either prefer a Revision or a Review of the decision taken by the Assessing Officer. Even otherwise also, as per Section 254(2)(a) of the Income Tax Act, which reads, that when the Appellate Tribunal considers an application on merits, and passes an order of stay of any proceedings or the recovery as a consequence thereto, if there is any grievances left to be agitated, which in the instant case is, as against the rejection of the stay application, which was filed before CIT(A), the recourse available to the petitioner would be, to prefer a Revision, because the nature of order, as it had been passed by the learned Appellate Authority, would be falling for a subject matter of consideration in the exercise of its revisional powers under Section 264 of the Act, which is wide enough to include within it any order, which is passed by any Authority, subordinate to the Principal Chief Commissioner or the Chief Commissioner of the Income-Tax.

5. In view of the provisions contained under Section 264 to be read with sub clause (C) of Clause 4 of the office memorandum dated 29th February 2016, and particularly, in the light of the fact, that when the petitioner has already submitted himself to the appellate jurisdiction by filing of an appeal, which he has already been pursued on merits, and pending consideration, carving out an exception of filing of a writ petition, under the garb of rejection of the stay application by the appellate authority by putting a challenge to the rejection of the stay application and then questioning the Assessment Order, under the garb of it, this Court is of the view that, it would amount to that the petitioner has attempted to have a resort to two judicial forums and reme