HIMANGSHU SEKHAR CHAKRAVORTY Vs. TAX RECOVERY OFFICER

JUDGEMENT

(1.) THE following core questions have been propounded in this application under Art. 226 of the Constitution :

(2.) THE application of the doctrine of consummation of statutory remedy as a bar to the exercise of the jurisdiction under Art. 226 of the Constitution in Fiscus (Fiscal) Laws : Dr. Saraf, learned counsel for the respondents, has taken a preliminary objection that the application is not maintainable. Learned counsel submits that the IT Act provides a complete machinery relating to assessment, levy and collection of incometax and has also constituted forums for obtaining relief in respect of improper or erroneous orders made by the Revenue authorities. On this premise, it has been contended that this Court has no jurisdiction to entertain the writ petition directed against the impugned acts, actions and orders.

(3.) IN short, learned counsel endeavours to apply the doctrine of exhaustion of statutory remedies as a bar to the exercise of jurisdiction under Art. 226 of the Constitution. It is true that the Court has imposed a restraint in its own wisdom on its exercise of jurisdiction under Art. 226 where the party invoking the jurisdiction has an effective, adequate, alternative remedy. The limitation that before asking for relief under Art. 226, the party must exhaust all alternative remedies is nowhere to be found in the Constitution. It is a rule of convenience and discretion rather than a rule of law. The existence of an alternative remedy does not oust the jurisdiction of the Court. In some illustrative cases, the Supreme Court has directed the High Courts not to exercise the extraordinary jurisdiction under Art. 226 when an alternative remedy exists but in some other cases, it has been ruled that the High Court is competent to exercise jurisdiction notwithstanding the existence of an alternative remedy. Where questions of infringement of fundamental rights arise, or where on undisputed facts, the taxing authorities are shown to have assumed jurisdiction not vested in them by law or where the authorities have assumed jurisdiction which they do not possess and the orders and directions result in grave injustice to the party, the doctrine of consummation of statutory remedy may not be applicable. The exercise of power under writ jurisdiction is discretionary and may be exercised where the order made, on the face of it, is erroneous, resulting in injustice. These are culled from Shivram Poddar vs. ITO (1964) 51 ITR 823 (SC); STO vs. Shiv Ratan G. Mohatta, AIR 1966 SC 142; (1965) 16 STC 599: Tata Engineering and Locomotive Company Ltd. vs. Asst. Commr. (Commercial Taxes), AIR 1967 SC 1401 ; (1967) 19 STC 520 ; Bhopal Sugar Industries Ltd. V. D. P. Dube, STO, AIR 1967 SC 549; (1963) 14 STC 410 (SC) and Gita Devi Aggarwal vs. CIT (1970) 76 ITR 496 (SC). In Hirday Narain vs. ITO (1970) 78 ITR 26, the Supreme Court has ruled that when the High Court had entertained the writ petition despite availability of an alternative remedy and heard the parties on merits, it would be unjust to dismiss the same on the ground of non exhaustion of statutory remedies. In that case, by the time the High Court had heard the parties on merits, the limitation provided for availing of the remedy had expired. The right to approach the High Court under Art. 226 of the Constitution in respect of the commencement of the reassessment proceedings has been outlined in Calcutta Discount Co. Ltd. vs. ITO (1961) 41 ITR 191 (SC). indeed, where the bare question involved is whether the conclusion reached by the taxing authority on the question of fact is correct or incorrect, the High Court should not exercise writ jurisdiction: vide Thansingh Nathmal vs. Supdt. of Taxes, AIR 1964 SC 1419; (1964) 15 STC 468 (SC). We are of the view that it is a settled principle that certiorari will go only where there is no other effective and convenient remedy. We are also of the view that the statutory system of appeal has been created for more effective and more convenient disposal of the cases before the appropriate appellate authority. Further, the party can question the validity of the findings of fact as well as issues relating to law and violation of the principles of natural justice even before the appellate or revisional authority created by the statute. However, there cannot be any doubt that an application for certiorari has the advantage that it is speedier and cheaper than the other method. In Ram and Shyam Company vs. State of Haryana, AIR 1985 SC 1147, the Supreme Court dealt with the question as to whether the existence of an alternative remedy ousts the jurisdiction of the High Court under Art. 226 and held that the alternative remedy must be effective in the real sense of the term. It has been held that the doctrine of exhaustion of the alternative remedy is a rule of convenience and discretion rather than a rule of law. Their Lordships referred and considered various cases including State of U.P. vs. Mohammad Nooh, AIR 1958 SC 86. It has been ruled that where the impugned order complained against is alleged to be illegal or invalid as being contrary to law, a petition by a person adversely affected by the order would lie to the High Court under Art. 226 of the Constitution. It has been held (AIR 1985 SC 1147, 1151)