Tarlok Singh Chauhan, J. - By medium of this writ petition, the following reliefs have been prayed for:-
(a) For a writ of certiorari or any other applicable writ or order or direction quashing the assessment order dated 26.12.2006 passed by the
respondent No. 2 w.r.t. the Petitioner Firm for the Assessment Year 2001-2002;
(b) For a writ of certiorari or any other applicable writ or order or direction quashing the transfer order dated 18/19.01.2006 passed by the
Respondent No. 1 w.r.t. the Petitioner Firm for the Assessment Year 2001-2002.
2. The pleaded case of the petitioner firm is that despite it having been closed down its business with effect from 30.11.2001, the respondent No.
1 without following the procedure laid down under Section 127(1) & 4 of the Income Tax Act, 1961, (for short ''Act'') has illegally vide order
dated 18/19.01.2006 transferred the case of the petitioner firm from ITO, Parwanoo to ITO, Una and thereafter respondent No. 2 has illegally
passed the assessment order dated 26.12.2006 making an ex parte assessment of Rs. 4,82,565/-.
3. The respondents have filed their reply wherein they have raised the preliminary objection regarding the very maintainability of the petition on the
ground that the petitioner firm has already questioned the impugned order of assessment by filing an appeal and, therefore, cannot be permitted to
choose two forums in respect of the same subject matter for the same relief by filing the instant petition. It is not disputed that the notice under
Section 148 of the Act was received back on 01.07.2005 with the remark ""addressee left the place hence returned"". However, it is claimed that
the notice under Section 148 of the Act dated 22.06.2005 was in fact received by Smt. Renu Aggarwal and Smt. Beena Mittal, partners of the
petitioner firm, on 05.07.2005 and the photocopy of the registered A.D. has been annexed as Annexure R-2. Lastly, it is claimed that notices were
in fact issued to the petitioner firm calling upon it as to why the case be not transferred to ITO, Una, but the petitioner firm did not choose to file its
reply and consequently the case was transferred and decided by the ITO, Una.
4. The petitioner firm has filed rejoinder wherein it has been specifically denied that the notice dated 22.06.2005 was ever received by any of the
partners. It is further averred that purported notices were served at the address of the factory site which had been closed long back and secondly
one Anita in the notice was never a partner in the petitioner firm. It is also averred that the address Bitana Road was never submitted in the office
of the respondents and these notices in fact appeared to have been sent continuously at wrong address, though the respondents were having the
addresses of the partners as contained in partnership deed dated 01.04.2000. It is lastly averred that all the notices sent subsequently under
Sections 142/143 of the Act were duly received by the partners of the petitioner firm as the same were sent at the addresses as given in the
partnership deed dated 01.40.2000. We have heard the learned counsel for the parties and gone through the material placed on record.
5. At the outset, it may be observed that there is no dispute that the petitioner firm prior to filing of the instant petition has already assailed the
assessment order dated 26.12.2006 by filing statutory appeal under Section 246A (1) (b) of the Act before the appellate authority. Therefore, the
moot question is whether the petitioner firm can maintain a petition under Article 226 of the Constitution of India for the reliefs for which it has
already availed the alternate remedy by filing the appeal, as the merits of the case can only be gone into by this Court after it holds the petition to
be legally maintainable.
6. Ordinarily, where the parties have more than one remedy available, they have to elect or select one of the remedies. In case, if the party is
allowed to select multiple remedies in multiple Forums and Courts, there will obviously be multiplicity of litigation and there is every chance and
likelihood that the judgments and/or orders may also be conflicting with each other.
7. In K.S. Rashid and Sons v. Income-tax Investigation Commission and Ors., AIR 1954 SC 207, a Hon''ble Constitution Bench of the
Hon''ble Supreme Court was considering an issue that when the remedy under Section 8(5) of the Taxation of Income (Investigation Commission)
Act, 1947, had been pending, whether the High Court could entertain the writ petition. The Hon''ble Supreme Court held that a person may
choose/effect whether it will proceed with the alternate remedy or with the writ petition, but both cannot be pursued simultaneously.
8. It is more than settled that when more than one remedy is available to a party in respect of the same grievance, it is open for that party to elect
or to choose his remedy. But, once he chooses his remedy, all incidents attached to that remedy must follow. Reference may be made to Nagubai
Ammal and others v. B. Shama Rao and others, AIR 1956 SC 593 wherein relying on the observations of Lord Justice Scrutton, in
Verschures Creameries Ltd. v. Hull and Netherland Streamship Company Limited (1921) 2 K.B. 608 (D), it was observed:-
The ground of the decision is that when on the same facts, a person has the right to claim one of two reliefs and with full knowledge he elects to
claim one and obtains it, it is not open to him thereafter to go back on his election and claim the alternative relief.
9. In A.V. Venkateswaran, Collector of Customs, Bombay v. Ramchand Sobhraj Wadhwani and Anr., AIR 1961 SC 1506, another
Constitution Bench of the Hon''ble Supreme Court held that even where a party has approached the alternative Forum, the Court should entertain
the writ petition or not, cannot be formulated in a straight-jacket formula. The Court may examine the facts and circumstances of the case and
decide as to whether it should entertain the petition or not. However, where the petitioner has already approached the alternative Forum for
appropriate relief, it is not appropriate that the writ petition should be entertained. The rule is based on public policy and motivating factor is that of
existing of parallel jurisdiction of another Court.
10. Similar view was reiterated by another Constitution Bench in M/s Trilokchand Motichand and others v. H.B. Munshi, AIR 1970 SC
898 and the Hon''ble Supreme Court cautioned that a writ Court should not entertain the writ petition and it is only in rare cases where the
ordinary process of law appears inefficacious that the writ Court may interfere even when other remedies are available.
11. In Jai Singh v. Union of India and others, (1977) 1 SCC 1, the Hon''ble Supreme Court held that the appellant therein having filed a suit in
which the same question as the subject matter in the writ petition was agitated could not be permitted to pursue to parallel remedies in respect of
the same matter at the same time.
12. In Bombay Metropolitan Region Development Authority, Bombay v. Gokak Patel Volkart Ltd. and Ors., 1995 1 SCC 642, the
petitioner therein had filed a writ petition during the pendency of the appeal before the Statutory Authority. The Hon''ble Apex Court held that such
a writ was not maintainable.
13. In S.J.S. Business Enterprises(P) Ltd. v. State of Bihar and Ors., 2004 Supp 2 JT 601, the Court held that mere availability of alternative
forum for appropriate relief does not impinge upon the jurisdiction of the High Court to deal with the matter. Even if it is not a position to do so on
the basis of the affidavits filed, however, if a party has already availed the alternative remedy while invoking the jurisdiction under Article 226 of the
Constitution it will not be appropriate to the Court to entertain the writ petition.
14. In State of Punjab and others v. Punjab Fibres Ltd. and others, (2005) 1 SCC 604, a Bench of Hon''ble three Judges'' held that where
the assessee challenges order of the Sales Tax Tribunal in an appeal as well as in writ petition simultaneously, in such circumstances, the writ
petition would not be maintainable.
15. It is clear from the aforesaid exposition of law that public policy demands that a person has right to choose the forum for redressal of his
grievance, but he cannot be permitted to choose two forums in respect of the same subject matter for the same relief.
16. It yet needs to be clarified that the writ Court may exercise its discretionary jurisdiction even if the parties approached other forum. There must
be extraordinary situation or circumstance, which may warrant different approach, particularly, where the orders passed by the Court are sought to
be violated or thwarted with impunity. The Court cannot be a silent spectator in such extraordinary situation. (Ref: Awadh Bihari Yadav and
others v. State of Bihar and others, (1995) 6 SCC 31). However, this is not the fact situation obtaining in the instant case. What to talk of an
extraordinary situation or circumstance, the petitioner firm has not even disclosed about the pendency of the appeal in its writ petition and the same
only finds mention in the list of dates appended therewith. There being no extraordinary situation or circumstance warranting this Court to step-in to
interfere, we are clearly of the view that the instant writ petition is not maintainable.
17. The petitioner firm having chosen to avail of the remedy, as provided in the statute that too earlier to the filing of the instant petition, cannot
maintain this petition and the same is accordingly dismissed, leaving the parties to bear their own costs. Pending application, if any, also stands
disposed of.
18. However, before parting, it may be necessary to observe that anything stated in the judgment shall not be construed to be an expression of
opinion on the merits of the case and the appellate authority shall proceed to decide the appeal uninfluenced by any observations that may be
contained herein above.