THE HONOURABLE SRI JUSTICE SUJOY PAUL AND THE HONOURABLE SRI JUSTICE NAMAVARAPU RAJESHWAR RAO WRIT PETITION No.19028 of 2024 ORDER (per Hon’ble SP,J)

Sri Syed Iliyas, learned counsel, appeared for the petitioner, Sri B. Mukherjee, learned counsel representing Sri Gadi Praveen Kumar, learned Deputy Solicitor General of India, appeared for respondent No.1 and Ms. J.Sunitha, learned Junior Standing Counsel representing Sri P. Murali Krishna, learned Senior Standing Counsel for Income Tax Department, appeared for respondent Nos.2 to 4.

2. This petition filed under Article 226 of the Constitution assails the assessment order dated 16.03.2024.

3. Learned counsel for the petitioner fairly submits that the petitioner preferred a statutory appeal before the appellate authority against the impugned assessment order and the said appeal is still pending. Since the petitioner has not deposited the requisite statutory amount for preferring appeal, the appellate authority is not hearing him on the said aspect. The petitioner has already preferred an application seeking withdrawal of the said appeal with the liberty to file another appeal in future, if required.

4. By placing reliance on the judgments of Supreme Court in Commissioner of Income Tax v. Chhabil Dass Agarwal, [(2014) 1 SCC 603] and PHR Invent Educational Society v. UCO Bank2, it is urged by learned counsel for the petitioner that since the petitioner was not put to notice before issuing the impugned assessment order, extraordinary situation arises, because of which, despite availability of alternative remedy, this petition can be entertained.

5. We have heard learned counsel for the petitioner at length.

6. No doubt, despite availability of alternative remedy, a writ petition can be entertained in certain situations including 1) breach of principles of natural justice, 2) when an order is passed by an incompetent authority, 3) fundamental rights of a person is breached and 4) constitutionality of a provision is under challenge. In the instant case, as highlighted, the only breach is regarding violation of principles of natural justice.

7. In Whirlpool Corporation v. Registrar of Trade Marks, Mumbai, [(1998) 8 SCC 1], although, it was held that the breach of principles of natural justice is one of the reason for which a petition can be directly entertained, but however, it was held to be the discretion of the Court and not a compulsion. The judgment of Whirlpool

2 (2024) 6 SCC 579

Corporation (supra) was again considered by the Supreme Court in U.P. State Spinning Co. Ltd. v. R.S. Pandey, [(2005) 8 SCC 264] and it was opined as under:-

“17. …But normally, the High Court should not entertain writ petitions unless it is shown that there is something more in a case, something going to the root of the jurisdiction of the officer, something which would show that it would be a case of palpable injustice to the writ petitioner to force him to adopt the remedies provided by the statute….”

8. In view of this judgment, mere breach of principles of natural justice is not sufficient to entertain the petition. It is not the case of the petitioner that the impugned assessment order is passed by an incompetent authority or if he is relegated to avail the remedy, it will cause palpable injustice to him. The statutory requirement of depositing of certain amount for preferring an appeal, by no stretch of imagination, can be termed as extraordinary situation necessitating entertaining the writ petition. Even, in case of Commissioner of Income Tax (supra), on which reliance is placed by learned counsel for the petitioner, it was made clear that the High Court must not interfere, if there is an adequate efficacious alternative remedy available to the petitioner.

9. Recently, the Hon’ble Supreme Court in its recent judgment dated 10.04.2024, in the case of PHR Invent Educational Society (supra) disapproved the order of Telangana High Court in W.P.No.5275 of 2021, dated 04.02.2022, wherein a Division Bench of this