1.

WRIT PETITION CHALLENGING THE NOTICE UNDER SECTION 143(3) OF

INCOME TAX ACT IS MAINTAINABLE

It is humbly submitted before this Hon’ble Court that the writ petition challenging the notice
issued by the Assessing Officer under Section 143(3) of the IT Act is maintainable under the
writ jurisdiction of this High Court under article 226 for the reason states hereinbelow.
Firstly, the availability of Alternative remedies is no bar against the admission of Writ as
there is violation of natural Justice. Secondly, assessee cannot be condemned unheard.

1.1 THE AVAILABLITY OF ALTERNATIVE REMEDY IS NO BAR AGAINST

ADMISSION OF WRIT PETITION.

It is humbly submitted before this Hon’ble Court that the remedy under Article 226 of the
Indian Constitution is discretionary remedy.1 When order passed by the income-tax
authorities arbitrary or does not comply with the statutory requirements the Apex Court in
the case of D. R. Enterprises v. Assistant Collector of Customs, held that the powers of the
High Court under Article 226 of the Constitution, while issuing appropriate writs, are very
wide. Even if there is an alternate remedy that may not preclude the High Court from
exercising the jurisdiction in a particular case. Reliance is placed upon the decision in the
case of Harbanslal Sahnia v Indian Oil Corpn. Ltd & Whirlpool Corporation v Registrar of
Trademarks, Mumbai & Ors. in which it was held, an alternative remedy is not a bar to the
exercise of the writ jurisdiction, the High Court may still exercise its writ jurisdiction in at
least three contingencies: (i) where the writ petition seeks enforcement of any of the
fundamental rights; (ii) where there is failure of principles of natural justice; or (iii) where
the orders or proceedings are wholly without jurisdiction or the vires of an Act is
challenged.” And the present case attracts applicability of 2 nd contingency as the Assessing
Officer passed the Draft Assessment order without giving an opportunity of Personal hearing
thus it violates the principle of natural Justice. Reliance can also be placed on Radha Krishan
Industries v. State of Himachal Pradesh & Ors Wherein the Apex Court summarized the
principles governing the exercise of writ jurisdiction by the High Court in the presence of an
alternate remedy. As regard the objection taken by the respondent, with respect, to the
maintainability of the writ petition, it is our view that the order passed was in breach of the

1
Sripur Paper Mills v. Commissioner of Wealth Tax, (1970) AIR 1520.
principles of natural justice and hence, a nullity in the eye of law, therefore, writ petition
would be a proper remedy.

1.2 ASSESSEE CANNOT BE CONDEMEND UNHEARD

It is humbly submitted before this Hon’ble Court that the assessment order passed was in
violation to rule of Audi Alteram Partem as neither the show cause notice was issued nor the
assessee be given an opportunity of personal hearing. This right of Audi Alteram Partem is a
valuable right recognized even under the Indian Constitution. Reliance is placed upon the
decision in the case of Maneka Gandhi v. Union of India & West Bengal Electricity
Regulatory Commission v. CESC. Ltd. wherein it was held, the principle of maxim which
mandates that no one should be condemned unheard, is a part of natural Justice and such
right of hearing conferred by a statute cannot be taken away even by courts.

It was held in the case of Canara Bank v. V.K Awasthy, that the adherence to principles of
natural Justice as recognized by all civilized States is of Supreme importance. The first and
foremost principle is what is commonly known as Audi Alteram Partem rule(Ashok Kumar
Sonkar v. Union of Indian and Ors.). Notice is the first limb of this principle. It must be
precise and unambiguous. It should apprise the party determinatively of the case he has to
meet. In absence of a notice of the kind and such reasonable opportunity, the order passed
becomes wholly vitiated. Thus, it is essential that a party should be put on notice of the case
before any adverse order is passed against him.