Court says assessee cannot pursue writ and statutory appeal simultaneously, but asks CIT(A) to decide long-pending appeal within two months.
The Delhi High Court has refused to entertain a writ petition challenging an income tax assessment order dated 31 December 2019, holding that the petitioner had already availed the statutory remedy of appeal and could not pursue both remedies at the same time.
A Division Bench comprising Justice Dinesh Mehta and Justice Rajneesh Kumar Gupta was hearing the petition filed by M/s Raj Sheela Growth Fund Pvt Ltd against the Income Tax Officer, Ward 21(1), Delhi. The petitioner had challenged the assessment order passed under Section 143(3) of the Income Tax Act, 1961.
At the outset, the Income Tax Department raised a preliminary objection, pointing out that the petitioner’s appeal against the assessment order had already been filed before the Commissioner of Income Tax (Appeals) on 24 January 2020 and was still pending. The department argued that since the petitioner had already chosen the appellate route, the writ petition was not maintainable.
The petitioner, however, contended that it had approached the High Court on a jurisdictional issue. Counsel submitted that in an earlier judgment dated 8 May 2024 in the petitioner’s own case for Assessment Year 2015-16, the High Court had already held that the concerned Assessing Officer did not have jurisdiction to assess the petitioner. On that basis, the petitioner argued that the statutory appeal should not prevent the Court from exercising writ jurisdiction.
The High Court was not persuaded to entertain the petition. It held that since the petitioner had already availed the statutory remedy of appeal, the Court would not exercise its discretionary jurisdiction under Article 226 of the Constitution. The Bench reiterated that an assessee cannot ordinarily pursue two remedies simultaneously.
At the same time, the Court took note of the fact that the appeal had been pending since January 2020. Considering the petitioner’s submission that the jurisdictional issue had already been decided in its favour in the earlier judgment, the Court requested the CIT(A) to decide the pending appeal within two months, provided the petitioner files a certified copy of the order along with an application for early hearing.
The Court also permitted the petitioner to place a copy of the 8 May 2024 judgment before the appellate authority so that the CIT(A) could consider the jurisdictional issue as well as the other grounds raised in the appeal. However, the Bench clarified that it had not expressed any opinion on the merits of the petitioner’s claims and that the CIT(A) would be free to take an independent view.
With these observations, the writ petition was disposed of.
Bottom Line :
Income Tax - Writ petition challenging assessment order not entertained where petitioner had already availed statutory remedy of appeal and same was pending before CIT(A) - High Court declined to exercise discretionary jurisdiction under Article 226 - However, considering pendency of appeal since 2020 and petitioner's plea regarding jurisdictional issue being covered by earlier judgment in its own case, CIT(A) requested to decide appeal within two months on filing certified copy of order and early hearing application.
Statutory provision(s): Constitution of India, 1950 Article 226, Income Tax Act, 1961 Section 143(3)
