Law:

Section:

Section 246 of the Income-tax Act, 1961 - Commissioner (Appeals) - Appeals to - Against assessment order of taxable income made by Income-tax Department, appellant-bank had already preferred an appeal before Commissioner (Appeals) - Grievance of bank was that Income-tax Department was not deciding appeal expeditiously and, therefore, it filed writ petition and then filed instant special appeal against interim order of Single Judge vacating interim stay earlier granted - Whether writ was maintainable - Held, no FACTS Against the assessment order of the taxable income made by the Income-tax Department, the appellant-bank had already preferred an appeal before the Commissioner (Appeals). The grievance of the bank was that the Income-tax Department was not deciding the appeal expeditiously and, therefore, it filed the writ petition and then filed instant special appeal against the interim order of the Single Judge vacating the interim stay earlier granted. HELD It is true that an alternative remedy does not divest the court of its powers to entertain petitions under articles 226 and 227 but that principle was hardly of any application on the facts of the instant case. It has been settled by a long catena of decisions that when a right or liability is crept 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 seeking the discretionary remedy under article 226. In the case at hand, the assessment made by the assessing authority of the Income-tax Department had been challenged. It was not the case of the appellant that the assessing authority of the Income-tax Department had no jurisdiction to make the assessment or he had taken the action or there had been a contravention of fundamental rights of the appellants or there had been a violation of the rules of natural justice or that the officer acted under the provisions of law which is ultra vires. [Para 5] The grievance was made and justification had been given to come directly to the court by circumventing the statutory remedy of the appeal that the appellate authority in the Income-tax Department was not…

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