Kalyan Jyoti Sengupta, J. - (1.) Mr. R. N. Mitra, learned senior counsel appearing for the Revenue, has taken a preliminary point of maintainability of this writ petition saying that there exists alternative remedy. The writ petitioner should have resorted to that first and after having exhausted the same it should have approached this court. I have no hesitation to reject this submission on two grounds. Firstly, if the question of jurisdiction of any statutory authority is raised, the writ court in its discretion, as a rule, entertains such petition. Secondly, the theory of alternative remedy does not operate as an absolute bar. It may be a question of convenience and discretion of the writ court. At the time of admission of this matter this court in exercise of discretion has entertained the matter and passed an interim order. The question of jurisdiction should have been raised at the first available opportunity, namely, at the time of admission. It is not a question of inherent lack of jurisdiction of this court, at the highest it may be a question of improper exercise of jurisdiction. Such a plea in a case of this nature can always be avoided or waived by the respondent. In my view, this plea by necessary implication has been waived by the Revenue. The question of jurisdiction is thus decided in favour of the writ petitioner.
(2.) Now, coming to the merits of this matter, it appears to me that the petitioner has challenged the impugned notice dated December 12, 1995, purported to have been issued under Section 148 of the Income-tax Act, 1961 (hereinafter referred to as "the said Act"). In order to appreciate the issues involved in this matter, the facts of this matter are stated in short as follows : This matter relates to the return of the assessment order for the period 1990-91. The writ petitioner under the provision of Section 44AB of the aforesaid Act is obliged to furnish audit report and to submit the same along with the returns which, in fact, has been done in this case. Along with the returns the audit report was furnished. The auditors certified under Section 44AB of the said Act that the petitioner is entitled to get deduction of certain portion of the income. After scrutinizing everything and issuing proper notice the Assessing Officer on March 31, 1993, has passed an order and thereby computed the total taxable income at Rs. 2,52,57,010 as against the claim of petitioner No. 1 of Rs. 31,88,207, in the return of petitioner No. 1. The petitioner being aggrieved by the disallowed portion of the aforesaid income preferred an appeal before the Commissioner of Income-tax (Appeals) and such appeal is pending. Petitioner No, 1 placed everything before the Assessing Officer and disclosed whatever it could do at the time of assessment. Thereafter, petitioner No. 1 nearly after two years received a notice under Section 154 of the said Act whereby and whereunder the Assessing Officer wanted to rectify and/or correct the said assessment order. In this rectification exercise the Assessing Officer included the aforesaid portion of the income deduction of which has been allowed.
(3.) The petitioner replied to the said notice for rectification, and the contention of the petitioner was accepted and whatever deduction was allowed under Section 32AB of the said Act was retained and the same was not withdrawn.;