SHAMBHU SARAN SANJEEV KUMAR Vs. INCOME TAX OFFICER

JUDGEMENT

(1.) AFTER we had passed the order dated April 15, 1996, Shri A.K. Gupta learned counsel for the petitioner, appeared and requested that since he had not been heard the case may be fixed for the next day, i.e., April 16, 1996. Hence we did not sign the order dated April 15, 1996, and we fixed the case for today for hearing.

(2.) WE have heard Shri A.K. Gupta, learned counsel for the petitioner. Shri Gupta has relied on the decision in CIT v. Bansi Dhar and Sons, 1986 157 ITR 665 (SC) and urged that a writ petition is maintainable against the order of the Income-tax Appellate Tribunal. There is no doubt that an alternative remedy is not an absolute bar to a writ petition but ordinarily this court insists that a petitioner should resort to his alternative remedy if it is available and this court ordinarily does not exercise its discretionary jurisdiction under Article 226 if an alternative remedy is available.

(3.) FROM a perusal of the above facts, it is evident that a remedy was available to the petitioner, namely, to file an application under Section 256(1), against the original order of the Tribunal dated June 5, 1991, but he did not nor did he file a reference application against the order dated October 21, 1991, in the rectification application. Since he failed to avail of his alternative remedy we are not inclined to exercise our jurisdiction under Article 226 of the Constitution in such a case where the petitioner has been filing miscellaneous applications one after another instead of availing of his statutory remedy of reference application. It may be mentioned that the Income-tax Act prescribes the various channels of filing appeal, reference, etc., and if a party is aggrieved against an order of the Tribunal his remedy is to file a reference application and not a writ petition ; this has been held by this court in Chemicals and Allied Products v. ITAT, 1989 175 ITR 344 and this view has also been taken in Writ Petition No. 1324 of 1993, Smt. Poonam Kumari v. ITAT decided on September 27, 1995. Hence, we dismiss the petition on the ground that the petitioner had an alternative remedy of filing a reference application.