GARG, J. - (1.) THIS writ petition under Article 226 of the Constitution of India has been filed by the petitioner on 8. 1. 2004 against the respondents with a prayer that by an appropriate writ order or direction the assessment order dtd. 4. 12. 2003 (Annex. 4) passed by the Income Tax Officer, Banswara (respondent No. 2) for the assessment year 2001-2002 by which the respondent No. 2 (Income Tax Officer, Banswara) dis-allowed the deduction under Section 80ib of the Income Tax Act, 1961 and brought entire business income to tax be quashed and set aside.
(2.) THE facts of the case us put forward by the petitioner are as under:- i) THE petitioner - firm was engaged in the business of running an industrial undertaking of blending of various types of tea leaves as per the procedure and is duly registered as a manufacturing unit with the District Industries Centre, Banswara vide certificate (Annex. 1 ). ii) Further case of the petitioner is that even the Department of Industries in Central Government vide its circular dtd. 20. 11. 1996 (Annex. 2) clarified that the process of blending tea leaves amounts to manufacture and therefore, such units should be so registered. iii) Further case of the petitioner is that the petitioner- firm prepares samples of tea as suggested by blend master and mixing process is also instructed by the blend master and this blending process is a continuous process and it is an important function as to maintain the similar blend of tea. iv) Further case of the petitioner is that tea leaf is not perfect for consumption independently and after preparation, the blended tea is packed in own brand name in pouches, bags and containers for marketing and thereafter the unit supplies the packet for marketing through marketers. v) Further case of the petitioner is that process of blending of tea amounts to manufacture and under the Sales Tax law, this Court in the case of Dhunseri Tea Industries vs. State of Rajasthan (1), has held that process of blending of tea amounted to manufacture and thus, benefit of exemption under the new Sales Tax Incentive Scheme, 1989 under the Sales Tax Act was granted. vi) Further case of the petitioner is that since this judgment of this Court in the case of Dhunseri Tea Industries (supra) was binding on the authorities, the respondent No. 2 (Income Tax Officer, Banswara) should have also followed the judgment while passing the impugned assessment order dtd. 4. 12. 2003 (Annex. 4) and the respondent No. 2 (Income Tax Officer, Banswara) should have allowed the claim of deduction of the petitioner - assessee under Section 80ib of the Income Tax Act. vii) Further case of the petitioner is that through impugned order dtd. 4. 12. 2003 (Annex. 4), the respondent No. 2 (Income Tax Officer, Banswara) disallowed the said deduction under Section 80 IB of the Income Tax Act and brought entire business income to tax, inter alia holding that a) That the petitioner claimed deduction under Section 80ib of the Income Tax Act to the tune of Rs. 2,46,943/- i. e. 100% of the profit earned from the industrial undertaking. b) That the case law in the case of Dhunseri Tea Industries (supra) was not applicable in the present case as the said judgment relates to exemption under the Sales Tax Act. c) THE language in the Sales Tax Act is different from the Income Tax act and they are not akin to the language in Section 80ia/80ib of the Income Tax Act. d) That deduction under Section 80ia/80ib is available only when the industry is engaged in manufacturing of producing article or thing, but under the Sales Tax Act, the proceeding has also been treated as manufacturing. e) THE respondent No. 2 (Income Tax Officer, Banswara) has placed reliance on judgment of Calcutta High Court in the case of Appeejay (P) Ltd. vs. CIT (1994) 206 ITR 367 which specifically dealt with Section 80-I and the Calcutta High Court observed that assessee of the case was merely mixing up and blending tea and sold them in the market and that processing of tea did not involve manufacturing of any article or thing and the Calcutta High Court did not allow deduction as claimed by the assessee of that case under Section 80-I. viii) Aggrieved from the assessment order dtd. 4. 12. 2003 (Annex. 4) passed by respondent No. 2 (Income Tax Officer, Banswara), this writ petition has been filed by the petitioner. In this writ petition, the main submission of the learned counsel for the petitioner is that when this Court in the case of Dhunseri Tea Industries (supra) has held that process of blending of tea amounts to manufacture and therefore, the impugned assessment order dtd. 4. 12. 2003 (Annex. 4) passed by the respondent No. 2 (Income Tax Officer, Banswara) is perse illegal and without jurisdiction and deserves to be set aside. Reply to the writ petition was filed by the respondents and their case is that since the impugned assessment order dated 4. 12. 2003 (Annex. 4) is applicable order and appeal lies under Section 246 (1) of the Act of 1961 before the Income Tax Commissioner (Appeals) and the petitioner has already filed and appeal (Annex. R/1) which is pending before the Income Tax Commissioner (Appeals), Udaipur and therefore, when the petitioner has already availed the alternative remedy of appeal, the present writ petition filed by the petitioner is not maintainable and should be dismissed on this ground alone. Heard and perused the record. There is no dispute on the point that the impugned assessment order dtd. 4. 12. 2003 (annex. 4) passed by the respondent No. 2 (Income Tax Officer, Banswara) is an appealable order and the petitioner has already filed appeal (Annex. R/1) under Section 246 of the Act of 1961 and same is pending before the Commissioner of Income Tax (appeals), Udaipur.
(3.) THERE is also no dispute on the point that in the assessment order (Annex. 4) dtd. 4. 12. 2003, the Income Tax Officer, Banswara (respondent No. 2) considered all the contentions raised by the petitioner and had answered the same in the impugned assessment order dtd. 4. 12. 2003 (Annex. 4) and even he had distinguished the judgment (Annex. 3) delivered in the case of Dhunseri Tea Industries (supra) from the fact of the present case by giving cogent reasons. Not only this, the learned Income Tax Officer (respondent No. 2) has placed reliance on judgment of Calcutta High Court in the case of Appeejay (P) Ltd. (supra) and after considering all the points, he came to the conclusion that the blending of tea is not a manufacturing process and thus he disallowed the claim of the petitioner claimed by him under Section 80ib of the Income Tax Act. In the facts and circumstances just mentioned above, the question that arises for consideration is whether in view of the fact that there is alternative remedy of appeal available to the petitioner and the same has been availed by the petitioner through no final adjudication has taken place in that appeal, the present writ petition is maintainable or not. ;