T. K. Warehousing Enterprises P. Ltd. and Another Vs. Central Board of Direct Taxes and Others. - Court Judgment

Excerpt:
head note: income tax writ--alternative remedy--petition to declare circular no. 681 invalid. ratio : since assessee can avail of alternative remedy by approaching assessing officer, the writ petition to declare circular no. 681 dt. 8-3-1994 invalid is not maintainable. held : income tax officer wrote a letter to petitioner complaining that the petitioner has failed to make deduction of tds on the freight charges paid in excess of rs. 10,000 under section 194c and demanding the particulars of such transactions and conveying that on the failure to do so, it will be treated as an assessee in default. petitioner has filed reply asserting that the demand is without the authority of law and thus, without jurisdiction. the income tax officer has not elected to send any further communication to the petitioners. yet, the petitioners have filed this writ petition seeking quashment of the circular. in view of the fact that the petitioners have submitted the reply there is no merit to entertain this petition. the petitioners can approach income tax officer and obtain proper decision on the reply submitted by him. application : principle relating to existence of alternative remedy is applicable to current assessment years. income tax act 1961 s.194c constitution of india art 226 - constitution of india 1055. article 141; [a.k. patnaik, c.j., dipak misra, abhay gohil, s. samvatsar, & s.k. gangele, jj] dismissal of slp arising from decision of high court whether binding precedent decision of division bench in rama and company v. state of madhya pradesh, [2007(ii) mpjr 229] overruled by full bench of same high court prior to delivery of decision of full bench order passed in division bench decision assailed in slp before supreme court dismissal of slp by short reasoned order, though declaration of law, but high court is bound to follow earlier decisions in field regard being had to concept of precedents as per law laid down by apex court and larger bench decision in jabalpur bus operators association, reported in [2003(1) mpjr 158]. court clarifies that dr. jaidev siddha v. jaiprakash siddha, 2007(2) mpjr (fb) 361; air 2007 mp 269 (fb) is not impliedly overruled in view of dismissal of slp articles 226 & 227; [a.k. patnaik, c.j., dipak misra, abhay gohil, s. samvatsar, & s.k. gangele, jj] power to issue writ under article 226 - [per majority] the high courts exercise original jurisdiction under article 226 of the constitution and supervisory jurisdiction and the power of superintendence under article 227 of the constitution. but, an eloquent and fertile one, a writ of certiorari is issued in exercise of original jurisdiction. whenever word supervisory has been used in the context of article 226 it is in contrast with the appellate or revisional jurisdiction. when a writ is issued under article 226 of the constitution in respect of courts or tribunals it is done in exercise of original jurisdiction and the parameters are different than article 227 of the constitution of india. it is worth noting that the power under article 227 was there in a different manner under the government of india act. power of superintendence is distinct from the exercise of power of revisional or supervisory jurisdiction which is a facet of the power of superintendence. the confusion occurs when one applies the principle of equivalence or equates the exercise of supervisory power and power of superintendence with original or supervisory jurisdiction. there is an acceptable nuance between the concept of jurisdiction and exercise of power by certain parameters. both do come within the fundamental concept of judicial review but the jurisdiction exercised is different when under article 226 a writ is issued it is issued in exercise of original jurisdiction whether against a tribunal or inferior courts or administrative authorities. the word superintendence has not been used in article 226 of the constitution. it is also evident that the term writs is not referred to in article 227. on a scrutiny of article 227 it would be crystal clear that power of superintendence conferred on the high courts is a power that is restricted to the courts and tribunal in relation to which it exercises jurisdiction. on the contrary the power conferred on the high court under article 226 is not constricted and confined to the courts and tribunals but it extends to any person or authority. be it noted, article 226 as has been engrafted in the constitution covers entirely a new area, a broader one in a larger spectrum. when the legislature has used the terms in exercise of original jurisdiction and supervisory jurisdiction it has to be understood that they are used in contradistinction in the constitutional context as has been interpreted by the apex court. the words of the section have to be understood to mean exercise of powers under article 226 of the constitution of india which is always original. -- m.p. samaj ke kamjor vargon ke krishi bhumi hadapne sambandhi kuchakron se paritran tatha mukti adhiniyam [3/1977]. section 2: writ appeal maintainability from order of single judge-when permissible held, maintainability of a writ appeal from an order of the learned single judge would depend upon many an aspect and cannot be put into a strait jacket formula. it cannot be stated with mathematical exactitude. it would depend upon the pleadings in the writ petition, nature of the order passed by the single judge, character and the contour of the order, directions issued, nomenclature given and the jurisdictional prospective in the constitutional context are to be perceived. it cannot be said in a hyper-technical manner that an order passed in a writ petition, if there is assail to the order emerging from the inferior tribunal or subordinate courts has to be treated all the time for all purposes to be under article 227 of the constitution of india. it would depend upon the real nature of the order passed by the learned single judge. the pleadings also assume immense significance. it would not be an over emphasis to state that an order in a writ petition can fit into the subtle contour of articles 226 and 227 of the constitution in a composite manner and they can co-inside, co-exist, overlap or imbricate. in this context it is apt to note that there may be cases where the single judge may feel disposed or inclined to issue a writ to do full and complete justice because it is to be borne in mind that article 226 of the constitution is fundamentally a repository and reservoir of justice based on equity and good conscience. it will depend upon factual matrix of each case. dr. jaidev siddha v. jaiprakash siddha, 2007(2) mpjr (fb) 361: air 2007 mp 269 (fb) is not impliedly overruled in view of dismissal of slp preferred against order reported in rama and company v. state of madhya pradesh [2007 (2) mpjr 229 (db) (mp)]. - 1 on november 15, 1994 (annexure p-2), complaining that the petitioner has failed to make deduction of tds on the freight charges paid in excess of rs. 10,000 under section 194c of the income-tax act, 1961, and demanding the particulars of such transactions and conveying that on the failure to do so, it will be treated as an assessee in default and shall be exposed to recovery in accordance with law.a. r. tiwari j. - this is a petition under article 226/227 of the constitution of india.briefly stated, the facts of the case are that petitioner no. 1 is a private limited company incorporated under the companies act, 1956, and petitioner no. 2 is its managing director. the respondents issued a circular no. 681 (see [1994] 206 itr 299), dated march 8, 1994, with regard to section 194c of the income-tax act, 1961 (annexure p-1), which required the deduction of the tax. respondent no. 4 (income-tax officer, (tds), bhopal), wrote a letter to petitioner no. 1 on november 15, 1994 (annexure p-2), complaining that the petitioner has failed to make deduction of tds on the freight charges paid in excess of rs. 10,000 under section 194c of the income-tax act, 1961, and demanding the particulars of such transactions and conveying that on the failure to do so, it will be treated as an assessee in default and shall be exposed to recovery in accordance with law. petitioner no. 1 has filed reply on february 20, 1995 (annexure p-4), asserting that the demand is without the authority of law and thus, without jurisdiction. the petitioners also made a reference to the case of bombay goods transport association v. cbdt : [1994]210itr136(bom) , decided by the bombay high court. thereafter, the respondents have not elected to send any further communication to the petitioners. yet, the petitioners have filed this writ petition seeking quashment of the aforesaid circular (annexure p-1) on the ground that it is not in conformity with section 194c of the income-tax act, 1961.i have heard both the sides.counsel for the petitioners urged that the circular is in conflict with the aforesaid section and deserves to be quashed. counsel for the respondents, on the other hand, dubbed the aforesaid contention as non-meritorious and submitted that the petitioners have no locus standi to challenge and in any case, they may approach respondent no. 4 and seek disposal of the reply (annexure p-4). counsel submitted that those suffering deductions, have not found any ground to challenge the deductions. counsel, therefore, has questioned the bona fides of this petition.in view of the fact that the petitioners have submitted the reply (annexure p-4), i do not find it fit to go into-the merits of the matter and entertain this petition. the petitioners can approach respondent no. 4 and obtain proper decision on the reply submitted by them. needless to say, when the question of jurisdiction is raised and the invalidity of the circular is set up, respondent no. 4 is required to decide the matter in conformity with law.as the aforesaid remedy is available to the petitioner, i decline admission and dismiss this petition summarily with no order as to costs.