WRIT PETITION NOT MAINTAINABLE :-  

to prefer an Appeal before the CIT(A)

Mr. Walve submits that instead of approaching the High Court under the writ petition, the assessee
ought to have filed its objections to the variations with the Dispute Resolution Panel (DRP) and urges
this court not to indulge into request by petitioner.

The view taken by the Hon'ble Allahabad High Court in the case of Sant Baba Mohan Singh
(supra) has been followed by the Hon'ble Rajasthan High Court in the case of CIT v. Gyan
Parkash Gupta (1987) 165 ITR 501 (Raj), wherein it has been held as under :

"An assessment order passed without issuing notice under Section 143(2) of the IT Act,
1961, is invalid but the invalidity is not of such nature that it goes to the root of the
proceedings. The ITO gets jurisdiction as soon as a return is filed but on failure to comply
with Section 143(2) of the Act, he cannot complete the assessment. An assessment order
completed without service of notice under Section 143(2) is not void ab initio and cannot be
annulled

, the next question to be considered is whether non-issuance of notice under Section

143(3) would render the assessment order as null and void, In our considered opinion, the
answer is in negative. It is settled legal position that there is a distinction between nullity and
irregularity. If the foundation itself is taken away then it would be the case of nullity.
However, where there is only deviation from rule of law, it would be the case of irregularity
which is curable.

46. The Hon'ble Supreme Court had occasion to consider this issue in the case of Dhirender
Nath Gorai v. Sudhir Chandra Ghosh AIR 1964 SC 1300 wherein at p. 1304, their Lordship
quoted with approval following observations of Calcutta High Court in the case of Ashutosh
Sikdar v. Bihari Lal Kirtania (1907) ILR 35 Calcutta 61 at 72 :

"No hard and fast line can be drawn between nullity and irregularity, but this much is clear
that any irregularity is a deviation from rule of law which does not take away the foundation
or authority for the proceeding, or apply to its whole operation, whereas a nullity is a
proceeding that is taken without any foundation for it, or is so essentially defective is to be of
no avail or effect whatever, or is void and incapable of being validated

If the AO acts within its jurisdiction,the court will not interfere normally(Ramdas Jugani v.
CIT 282 ITR 356; PP Abdul Khader and Co. v CIT 351 ITR 17.

A writ, direction or order may be issued in an appropriate case.Shubham v IAC 174 ITR
502; Manilal v Lulla 176 ITR 253; Jain and Jayans v DCIT 215 ITR 419(alternative
remedy); VK Sood Engineers v CIT 208 ITR 341.) for the principle underlying the grant
of such relief, see s293 under writs, directions and orders under the constitution.(

Arunachalam Nadar Muthuraj

v.
Income-tax Officer

It is well open to the writ petitioner to avail alternate remedy inter alia under section 246/246A

of IT Act.

In the case of Asst. Collector, Central Excise v. Dunlop India Ltd and Ors, [1985(19) E.L.T.22 (SC)],
it was held that Article 226 is not meant to short circuit or circumvent statutory provisions and the
High Court must entertain the writ petition only when statutory remedies are entirely ill-suited to meet
the demands of extraordinary situations and where interference is necessary to prevent public injury
and vindication of public justice

Harbanslal Sahnia v Indian Oil Corpn. Ltd, (2003) 2 SCC 107

 When a right is created by a statute, which itself prescribes the remedy or procedure for enforcing the
right or liability, resort must be had to that particular statutory remedy before invoking the discretionary
remedy under Article 226 of the Constitution. This rule of exhaustion of statutory remedies is a rule of
policy, convenience and discretion; and

Noting that the appellant has an alternative and efficacious remedy of appeal under Section
107 of the HPGST Act,

 In Thansingh Nathmal & Ors. vs. Superintendent of Taxes, Dhubri & Ors.10, the
Constitution Bench of this Court made it amply clear that although the power of the High
Court under Article 226 of the Constitution is very wide, the Court must exercise self-
imposed restraint and not entertain the writ petition, if an alternative effective remedy is
available to the aggrieved person.

in Titaghur Paper Mills Co. Ltd. & Anr. Vs. State of Orissa & Ors. 11, wherein it is observed
that where a right or liability is created by a statute, which gives a special remedy for
enforcing it, the remedy provided by that statute must only be availed of. Under the
scheme of the Act, there is a hierarchy of authorities before which the petitioners can get
adequate redress against the wrongful acts complained of. The petitioners have the right to
prefer an appeal before the Prescribed Authority under subsection (1) of Section 23 of the
Act. If the petitioners are dissatisfied with the decision in the appeal, they can prefer a
further appeal to the Tribunal under subsection (3) of Section 23 of the Act, and then ask
for a case to be stated upon a question of law for the opinion of the High Court
under Section 24 of the Act. The Act provides for a complete machinery to challenge an
order of assessment, and the impugned orders of assessment can only be challenged by the
mode prescribed by the Act and not by a petition under Article 226 of the Constitution. It is
now well recognised that where a right or liability is created by a statute which gives a
special remedy for enforcing it, the remedy provided by that statute only must be availed
of.

Assistant Commissioner (CT) LTU, Kakinada and others v Glaxo Smith Kline Consumer Health
Care Limited

the fact that the High Court has wide jurisdiction under Article 226 of the Constitution, does
not mean that it can disregard the substantive provisions of a statute and pass orders which
can be settled only through a mechanism prescribed by the statute.

Hence, the assessment order should not have been interfere with by the High Court and the
assessee, if aggrieved, should have required to prefer an Appeal before the CIT(A).