Indian Herbs Research and Supply Co. and Others vs Deputy Commissioner of Income Tax (Assessment) and Others

By this writ petition, under Article 226 of the Constitution of India, the petitioners, a registered firm, and carrying on business of manufacturing and supply of veterinary herbal medicines, challenge the order dated September 11, 1991, contained in annexure 6 to the writ petition and passed by respondent No. 1.

The petitioners submitted their return for the assessment year 1990-91, relevant to the accounting year ending on March 31, 1990, showing the income of Rs. 23,66,257. Along with the aforesaid return, complete details of the accounts, including auditors'' report, prepared by Chug and Company, Chartered Accountant, was also filed.

On December 26, 1990, the Deputy Commissioner of Income Tax (Assessment), Special Range II, respondent No. 1 in this writ petition, made an adjustment of Rs. 6,87,478 u/s 143(1)(a) of the Income Tax Act, 1961 (hereinafter referred to as "the Act"), and completed the assessment on an income of Rs. 30,53,740.

It appears that the petitioners were not satisfied with the aforesaid adjustment and filed an application u/s 154 of the Act, submitting therein that certain mistakes, which are apparent on the face of the record, according to the petitioners, were liable to be rectified ; the aforesaid application u/s 154 of the Act was disposed of by an interim order dated September 11, 1991, contained in annexure 6 to the writ petition. It is this order against which the petitioners have come before this court by means of the present writ petition.

The short question that arises in this writ petition is as to whether the order impugned, dated September 11, 1991, contained in annexure 6, is appealable within the meaning of the provisions of Section 246(1)(c) of the Act. A bare reading of this provision postulates that "an order u/s 154 or Section 155 having the effect of enhancing the assessment or reducing a refund or an order refusing to allow the claim made by the assessee under either of the said sections" is appealable. Therefore, it is not that the order made u/s 154 of the Act is not appealable.

Learned counsel appearing for the petitioner, however, vehemently contended that the order made under Sub-section (1)(a) of Section 154 of the Act is not appealable. This provision speaks of "amend any order passed by it under the provisions of this Act", As already observed above, a bare reading of Clause (c) of Sub-section (1) of Section 246 of the Act covers the entire part of Section 154 of the Act. Therefore, the provisions of Section 154 of the Act cannot be dissected according to the wisdom of the petitioner, when the Legislature itself, while enacting the provisions of Section 246 of the Act, has in its wisdom made that provision. On the other hand, it made a provision for preferring an appeal against the order passed u/s 154 of the Act, including Sub-section (1)(a) of Section 154 of the Act.

Learned counsel for the petitioners, in support of his submission that there is no alternative remedy, and Section 246(1)(c) of the Act is not available to him, cited decisions in Indo-Gulf Fertilizers and Chemicals Corporation Ltd. Vs. Union of India (UOI) and Another, and Khatau Junkar Ltd. and another Vs. K.S. Pathania and another, .

Both the aforesaid decisions are distinguishable having no direct nexus with the facts of the instant case. Besides this, a perusal of both the decisions referred to above reveals that the decision rendered by the apex court in Titaghur Paper Mills Co. Ltd. and Another Vs. State of Orissa and Others, has not been referred to. Precisely, this decision deals with tax matter and envisages that where an alternative remedy is provided, no interference in writ jurisdiction is called for. This being the law of the apex court and this court being bound by it, we hold that on the ground of alternative remedy, this writ petition is not maintainable. Besides this, it is not that the grounds which have been raised in this writ petition, and are available to the petitioners, are not available before the appellate forum.

In the result, on the ground of alternative remedy, this writ petition is dismissed. They stay order dated October 29, 1991, is hereby vacated.