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2016 DIGILAW 1783 (ALL)

Abid Ali Khan v. Income Tax Officer

2016-05-09

DILIP GUPTA, RAVINDRA NATH KAKKAR

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JUDGMENT The petitioner who claims to be a Non Resident Indian, has challenged the assessment order dated 21 March, 2016 passed by the Income Tax Officer Ward-3 (1), Bulandshahar under Section 144 of the Income Tax Act, 1961 the Act for the assessment year 2013-14 on the ground that he did not have the jurisdiction as the jurisdiction vested solely with the Commissioner of Income Tax (International Taxation)- 3, Delhi or a person authorised by him under the circular issued from time to time. 2. A preliminary objection has been raised by Sri Manish Goyal, learned counsel appearing for the department that even this issue can be agitated in the appeal that the petitioner can file under Section 246 (1) (a) of the Act. 3. Sri Suyash Agarwal, the learned counsel appearing for the petitioner has submitted that where the question of jurisdiction is involved, then a writ petition can be filed and in support of his submission, he has placed reliance upon a decision of Supreme Court in Rai Bahadur Seth Teomal v. Commissioner of Income Tax and Another '[ 1959] 36 ITR (SC)'. 4. We have perused the assessment order. The Assessing Officer has recorded a categorical finding of fact that the return was filed by the petitioner as a "resident" on 31 March 2014 and the claim of the petitioner that he was a Non Resident Indian on the basis of a passport could not be substantiated by him. In this regard information was sought from the Foreigners Regional Registration Office and the department informed that the records maintained at the Indra Gandhi Airport, New Delhi, were got checked but they do not substantiate the claim of the petitioner. The Income Tax Officer, therefore, concluded that the claim of the petitioner of being a 'Non Resident Indian' remains unsubstantiated and the status of the petitioner would be that of a 'resident'. 5. Be that as it may, we are not inclined to entertain this petition as the petitioner has an alternative remedy of filing an appeal under Section 246 (1) (a) of the Act. 6. Section 246 (1) provides that subject to the provisions of subsection (2), any assessee aggrieved by any of the orders mentioned therein the Assessing Officer may appeal to the Deputy Commissioner (Appeals). 6. Section 246 (1) provides that subject to the provisions of subsection (2), any assessee aggrieved by any of the orders mentioned therein the Assessing Officer may appeal to the Deputy Commissioner (Appeals). The orders include an order where the assessee denies his status as that of a 'resident' and claims to be 'Non Resident'. The impugned order is, therefore, clearly appealable. 7. The decision in the case of Rai Bahadur Seth Teomal v. Commissioner of Income Tax and Another, '[ 1959] 36 ITR (SC)' will not help the petitioner as Section 246 (1) (a) itself provides for an appeal. In this connection, we feel inclined to refer to the Judgment of Supreme Court reported in Union of India & Anr. v. Guwahati Carbon Ltd, '(2012) 11 SCC 651' wherein the Supreme Court has observed that orders of assessment can only be challenged by the mode prescribed under the Act and not by a petition under Article 226 of the Constitution. The observations are as follows: - "....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...." 8. We, therefore, as the petitioner has a statutory right of filing an appeal under Section 246 (1) (a) of the Act, decline to entertain this petition. 9. The petition is, accordingly, dismissed.