KESHOTE, J. - (1.) HEARD the learned counsel for the parties, perused the entire record of the writ petition, special appeal and the order of the learned Single Judge.
(2.) AT the out set we are constraint to observe that the State Bank of Bikaner & Jaipur has wasted huge public money in making this bulky record of the appeal. In the appeal, the State Bank of Bikaner & Jaipur has challenged the order of the learned Single Judge under which, on the application filed by the respondent under Article 226 (3) of the Constitution of India, the interim order granted on 27th of March, 2003, has been vacated. Though, this appeal is against the interim order on an interlocutory application and ordinarily it is not maintainable but on the insistence of the counsel appearing on behalf of the appellants, we have touched the merits of the matter. Having carefully examining the merits of the matter we constraint to observe even filing of the writ petition in the matter is uncalled for. It was avoidable and unwarranted litigation before this Court. The record of the writ petition is also made bulky one. It is really shocking and surprising that in the matter the State Bank of Bikaner and Jaipur has lavishly spent the money, the people's money, in litigation. It is an income tax matter. Against the assessment order of the taxable income made by the Income Tax Department the appellant has already preferred the appeal before the Commissioner (Appeals), Income Tax Department. We fail to see how in the matter the writ petition is maintainable. The application filed by the appellant under Section 154 of the Income Tax Act has also been rejected by the officer concerned. It is true that an alternative remedy does not divest this court of its powers to entertain petitions under Articles 226 and 227 of the Constitution of India but this principle is hardly of any application on the facts of the present 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 of the Constitution of India. The reference here may have to the Five Judges Bench Decision of this Court in the case of Gopi Ram Teli vs. State of Rajasthan (1 ). This rule of exhaustion of statutory remedies is no doubt a rule of policy convenience or discretion and the court in the exceptional cases issued a discretionary writ of certiorari. These are the cases where there is complete lack of jurisdiction for the Officer or the Authority or the Tribunal to take the action or there has been a contravention of fundamental rights or there has been violation of rules of natural justice or where the Tribunal has acted under the provisions of law, which is ultra vires, then notwithstanding the existence of an alternative remedy, this court can exercise its jurisdiction to grant relief. In the case in hand the assessment year made by the assessing authority of the Income Tax Department has been challenged. It is not the case of the appellant that the assessing authority of the Income Tax Department has no jurisdiction to make the assessment or he has taken the action or there has been a contravention of fundamental rights of the appellants or there has been a violation of the rules of natural justice or that the officer acted under the provisions of law which is ultra vires. The grievance is made and justification has been given to come directly to this court by circumventing the statutory remedy of the appeal that the appellate authority in the Income Tax Department is not deciding the appeals filed by the appellant in the matters of previous assessment years. This is hardly a ground muchless a sufficient ground to justify such a course of action adopted by the appellant in the present case and that too at the cost of the public money. When the litigant had statutory remedy of assailing the order of the assessing authority in the Income Tax Department by filing an appeal it could not bypass such remedy and take recourse to the proceedings under Article 226 of the Constitution of India. Their Lordships of the Hon'ble Supreme Court in Seth Ratan Chand vs. Pandit Durga Prasad (2), held that such a course of action may enable a litigant to defeat the provisions of the Statute which may provide for certain conditions for filing the appeal, like limitation, payment of court fees or deposit of some amount or fulfillment of some other conditions for entertaining the appeal.
(3.) IN Bombay Metropolitan Region Development Authority vs. Gokal Patel Bolkart Limited and Others (3), the Hon'ble Apex Court held that the writ petition filed during the pendency of the petitioner's appeal before the statutory authority is not maintainable. The appellant undisputedly filed the writ petition in the matter after it has already filed the appeal against the order of the INcome Tax Department the assessing authority, before the Commissioner (Appeals), INcome Tax Department. It is true that the appeals filed by the appellant against the earlier assessment orders are not decided by the appellant authority. Still we fall to see any justification in the action of the State Bank of Bikaner and Jaipur to file the writ petition and then to file this special appeal against the interim order of the learned Single Judge vacating the interim stay earlier granted. The Income Tax Department may or may not be correct to charge the income tax from the State Bank of Bikaner & Jaipur in the matter, how far it is justified for it to file the writ petition and appeal. On its success in the appeal/appeals whatsoever amounts recovered by the Income Tax Department from it of the income tax, penalty or interest, are to be refunded back to it with interest. In case the Appellate Authority of Income Tax Department does not decide the appeals filed by the appellants within a reasonable time, we can appreciate of filing of writ of mandamus by the Bank to this Court for direction to the said authority to decide the same at an early date but not this writ petition and that too of the bulky record and then this bulky record appeal against the order of the learned Single Judge under which the interim relief granted earlier has been vacated. We also failed to appreciate the action of the Income Tax Department to sit over the appeals filed by the assessee appellant. The appeals are to be decided within a reasonable time. The Income Tax Department appears to concern only to raise demand and recover the taxes and seldom bother to decide the appeals expeditiously and to refund the amount of the tax found paid excess by assessee. ;