Income-tax---

----Assessment---Writ---Alternate remedy---Sample scrutiny under S.143(3)- Assessee having alternate remedy by way of appeal---Writ petition could not be entertained----Indian Income Tax Act, 1961, Ss. 143 & 253---Constitution of India, Art. 226.

Held, dismissing the writ petition, that the writ petitioner had an alternative remedy to prefer an appeal to the -Appellate Tribunal under section 253 of the Income Tax Act, 1961. Hence, the writ petition could not be entertained.

Navnit Lal C.. Javeri v. K. K. Sen, A.A. C. of I. T. (1965) 56 ITR 198 (SC); Raza Textiles Ltd. v. ITO (1973) 87 ITR 539 (SC) and Varghese (K.P.) v. ITO (1981) 131 ITR 597 (SC) ref.

Dr. Debi Pal and Amal Sen for Petitioners.

D. Shome and D. Chowdhury for Respondents.

JUDGMENT

This is a writ application challenging a demand notice, dated October 13, 1997, issued by respondent No. 5.

The grievance of the writ petitioners is that petitioner - No. 1 furnished its return of income for preceding assessment year 1994-95 showing a taxable income of Rs.82,980 and the same was assessed under section 143(1)(a) of the Income-tax Act on a taxable income of Rs.82,980. In the assessment year 1995-96, the assessee furnished a return of income showing a total income of Rs.8,99,310, which is higher by more than 30 percent. of the assessed income of the preceding year. The assessee, petitioner No. 1, paid all the taxes on this returned income. Accordingly, petitioner No. l has satisfied all the conditions set out in the said circular issued by the Central Board of Direct Taxes and, therefore, the Assessing' Officer is obliged under the law to follow the said instruction and is not under any competent jurisdiction to make a sample scrutiny under section 143(3)', disregarding the said circular. All the conditions precedent to come under those category of assessees whose assessment for the year 19956 is to be made as per return submitted and whose returns of income are being exempted by the said circular from sample scrutiny under section 143(3) of the Income-tax Act, are being satisfied by petitioner No. 1. The petitioners reasonably expected that the assessment of the petitioner's firm should be completed in terms of the said circulars and/or guidelines for the assessment year 1995-96 as per return submitted by, it and not under section 143(3) of the Income-tax Act. '

The petitioners further submitted that despite such specific circular/instructions and/or guidelines issued by the Central Board of Direct Taxes as referred to above, respondent No,. 7 being the Assessing Officer, entrusted to deal with the computation of assessment of income of petitioner No. 1 for the assessment year 1995-96, finally completed the said assessment under section 143(3) of the Income Tax Act, 1961, by taking recourse to sample scrutiny. The said respondent No. 7 in violation, of the said guidelines and/or contrary to the said circular issued by the Central Board of Direct. Taxes with regard to procedure to be adopted in the case of such sample scrutiny for the said assessment year, unlawfully assessed 'the petitioner's return of income for the assessment year 1995-96 under section 143(3) of the Income Tax Act, 1961.

Thereafter, the assessment was completed under section 143(3) for the assessment year 1995-96. Thereafter, the petitioner duly filed an appeal before the Commissioner of Income-tax (Appeals) v. Calcutta, respondent No. 5. The main grievance of the petitioner was that respondent No.7, Assessing Officer, Income-tax, Circle 8(1), Calcutta, wrongly computed that petitioners have suppressed a total sale for Rs.29,34,800. Further, the Assessing Officer is wrong, erroneous and beyond jurisdiction in selecting the assessee's case for scrutiny in view of the press note of the Central Board of Direct Taxes. The said appeal was also heard and disposed of by the appellate authority on May 30, 1997.

Thereafter, the writ petitioner received a demand notice being No.DC/SR/9/97-1998/329, dated October 13, 1997. According to the writ petitioner, respondent No. 5 unlawfully has demanded the said amount by way of the said notice of the petitioner.

Dr. Debi Pal, who appeared on behalf of the writ petitioner, submitted that the Assessing Officer as well as the appellate authority are wrong in not holding that in accordance with the press note of the Central Board of Direct Taxes, they did not have any right to proceed under section 143(3) of the said Act. Dr. Pal also tried to convince this Court by citing Navnit Lal C. Javeri v. K. K. Sera, A.A.C. of Income-tax (1965) 56 ITR 198 (SC), K:P. Varghese v. ITO (1981) 131 ITR 597 (SC) and Raza Textiles Ltd. v. ITO (1973) 87 ITR 539 (SC) in support of his contention.

Mr. Shome, appearing on behalf of the respondents, submitted, that the writ petitioners have a right to appeal before the Tribunal and they have an alternative remedy which is specifically prescribed under the Income Tax Act, 1961.

I have considered the facts and circumstances of this case and also the sections of the Income Tax Act, 1961, and I have found that the writ petitioners have an alternative remedy to prefer an appeal to the Appellate Tribunal under section 253 of the said Act.

After considering the facts of this case, I hold that the writ petitioners have an alternative remedy and as such this writ Court should not entertain this writ application. The writ petitioners shall take recourse to the law which is provided under the Income Tax Act, 1961.

However, I made it clear that I have not gone into the merits of the case at this stage, since I have found that there is an alternative remedy in favour of the writ petitioners under section 253 of the Income-tax Act. As such the writ petitioners will be at liberty to prefer an appeal under the said Act before the Tribunal.

In this view of the matter, this application is dismissed without any, order as to costs. Parties will be at liberty to take all points which are kept open, before the appropriate authority.

M.B.A./3273/FCApplication dismissed.