- (1.) SUPPLEMENTARY -affidavit filed by the petitioner is taken on record. Heard Mr. J.N. Mathur, Senior Advocate duly assisted by Mr. Mudit Agarwal and Mr. Anand Prakash Sinha, learned Counsel for the petitioner and Mr. Alok Mathur, learned Counsel for the Revenue. Through the instant writ petition, the petitioner assails the impugned notice dated 11.9.2013 issued by the opposite party No. 2/Deputy Commissioner of Income Tax, Range -2, Lucknow, contained in Annexure 1 to the writ petition.
(2.) THE petitioner is an assessee with the Income Tax Department and has been discharging his obligations under Income -tax Act, 1961. The petitioner had filed his returns at Lucknow upto the Assessment Years 2011 -12 as his place of principal business was within the territorial area which was assigned to the Assessing Officer, Range -2, Lucknow by the competent authority in exercise of the powers under Section 120(3) of the Income -tax Act, 1961. From the Assessment Year 2012 -13, related to Financial Year 2011 -12, the petitioner has shifted his place of business at New Delhi and accordingly filed his income -tax return at Delhi. Later on, a notice under Section 143(2) of the Income -tax Act was issued by the Assessing Officer, Range - 2, to which the petitioner tendered his reply that he had already filed his return through e -filing at New Delhi, as he has shifted his place of principal business from Lucknow to New Delhi, copy whereof has been annexed as Annexure SA3 to the supplementary -affidavit. Thus, it has been contended that the Assessing Authority at Lucknow has no jurisdiction to issue the impugned show -cause notice dated 11.9.2013 in view of the provisions of Section 124 of the Income -tax Act. Mr. Alok Mathur, learned Counsel for the Revenue raised a preliminary objection regarding maintainability of the writ petition against the show -cause notice. According to petitioner, writ petition against show -cause notice is not maintainable. He further pointed out that during pendency of the instant writ petition, the demand has also been created and as such the petitioner has an equally efficacious alternative remedy by assailing the said order in Statutory Appeal.
(3.) BEFORE dealing with the merits of the case, first of all, we would like to deal with the preliminary objection regarding maintainability of writ petition. In the case of Whirlpool Corporation v. Registrar of Trade Marks, Mumbai and others, : (1998) 8 SCC 1, the Hon'ble Supreme Court in Para -15 of the judgment has held as follows: "15. Under Article 226 of the Constitution, the High Court, having regard to the facts of the case, has a discretion to entertain or not to entertain a writ petition. But the High Court has imposed upon itself certain restrictions one of, which is that if an effective and efficacious remedy is available, the High Court would not normally exercise its jurisdiction. But the alternative remedy has been consistently held by this Court not to operate as a bar in at least three contingencies, namely, where the writ petition has been filed for the enforcement of any of the fundamental Rights or where there was been a violation of the principle of natural justice or where the order or proceedings are wholly without jurisdiction or the vires of an Act is challenged.";