MANCHARRAO NARSINGRAO HEBLE Vs. UNION OF INDIA

JUDGEMENT

(1.) BY this petition filed under Art 226 of the Constitution of India, the petitioner is seeking a writ of certiorari or any other writ to quash the order of assessment dt. 24th Feb., 1981 passed by the 7th ITO, P Cricle, Bombay. The petitioner is occupying a flat on the 6th floor of the building 'Atru Terraces', situate at 19th Cuffe Parade, and for the asst. year 1978 79 the petitioner filed his return and in the return the property income from this flat was not shown. The ITO, while passing the impugned order, set out the contentions of the petitioner that he is neither the owner of the flat nor can be deemed to be the owner and rejected the contention holding that the income from the house property is assessable to tax.

(2.) THE learned counsel on behalf of the Revenue raised a preliminary objection to the maintainability of the petition, submitting that the petitioner has efficacious alternative remedy provided under the IT Act. The petitioner could prefer an appeal under S. 246 of the IT Act before the Asstt. CIT, and if aggrieved, further appeal to the CIT and then to the Tribunal. The learned counsel submits that it is not proper for this Court to entertain the petition by permitting the petitioner to challenge the order of the ITO without exhaustion of alternate remedy. In my judgment, the preliminary objection raised on behalf of the respondents is sound and deserved to be upheld. The petitioner , who appeared in person and who is an advocate of this Court, invited my attention to page 836 of Constitution of India by Seervai, Second Edn. Vol II, where the learned author has summarised the proposition emerging from the decided cases on the question of alternative remedies. The petitioner argued that the order passe by the ITO is contrary to law or is without authority of law, and, therefore, the writ petition against the said order is maintainable. It was also urged that in respect of writ of certiorari, there is no rule that it will lie only if there is no adequate alternate remedy. The petitioner also relied upon the decision of the Supreme Court in (State of Uttar Pradesh vs. Mohammand Nooh) and (Bhopal Sugar Industries Ltd. vs. D. P. Dube STO) (1964) 1 SCR 418. In the later decision, which was under the provisions of the ST Act, the Supreme Court observed :

(3.) A faint attempt was made to urge that the ITO has not given any reasons for his conclusion and as laid down by the Supreme Court, it is necessary for the quasi judicial authority to give reasons in support of the conclusion and more so when an appeal is provided and, therefore, the order should be quashed in writ jurisdiction. I am not impressed by the submission, because it is open for the appellate authority to consider the material and record an pass appropriate order.