SARDAR HARINDER SINGH Vs. INCOME TAX APPELLATE TRIBUNAL

JUDGEMENT

(1.) BY this petition under Article 226 of the Constitution of India, the petitioner challenges an order dated October 25, 1994, passed by the Income-tax Appellate Tribunal, Allahabad, whereby it allowed the petitioner's appeal against the levy of penalty under Section 271(1)(a) of the Income-tax Act, 1961 (hereinafter referred to as "the Act"), and setting aside the penalty order remanded the matter back to the Assessing Officer to comply with the provisions of Section 274(2) of the Act.

(2.) COUNTER and rejoinder affidavits have been exchanged and I have heard learned counsel for the petitioner, Shri Navin Sinha and Shri R.R. Agarwal, learned counsel for the respondents.

(3.) IN the present writ petition, the petitioner's contention is that the remand of the case to the assessing authority is legally unjustified. If, therefore, a question of law arises from the order of the Tribunal, the petitioner has the alternative remedy of seeking a reference under Section 256(1) or 256(2) of the Act and a writ petition is not maintainable. The respondents in their counter-affidavit have raised this plea as well. Learned counsel for the petitioner contended that the existence of an alternative remedy does not debar the jurisdiction of the High Court to entertain a petition under Article 226 of the Constitution of INdia. It is true that there is no absolute bar, but the courts have in their own wisdom declined to exercise extraordinary jurisdiction under Article 226 of the Constitution of INdia when a petitioner has an alternative efficacious remedy. IN the present case, the petitioner has such an efficacious remedy by seeking a reference under Section 256 of the Act. Therefore, the writ petition deserves to be dismissed on this ground.