TaxTMI 
TaxTMI 
2004 (4) TMI 24
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.... 1). (ii) The further case of the petitioner is that even the Department of Industries in the Central Government vide its circular dated November 20, 1996 (annexure 2), clarified that the process of blending tea leaves amounts to manufacture and therefore, such units should be so registered. (iii) The further case of the petitioner is that the petitioner-firm prepares samples of tea as suggested by the 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) The 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) The further case of the petitioner is that the process of blending of tea amounts to manufacture and under the sales tax law, this court in the case of Dhunseri Tea Industries v. State of Rajasthan reported in [2001] 1 Tax Update 235, has held that process of blending of tea amounted to manufacture ....
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.... been filed by the petitioner. In this writ petition, the main submission of learned counsel for the petitioner is that when this court in the case of Dhunseri Tea Industries [2001] 1 Tax Update 235 has held that process of blending of tea amounts to manufacture and therefore, the impugned assessment order dated December 4, 2003 (annexure 4), passed by respondent No. 2 (Income-tax Officer, Banswara) is per se 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 December 4, 2003 (annexure 4), is an appealable order and appeal lies under section 246(1) of the 1961 Act before the Income-tax Commissioner (Appeals) and the petitioner has already filed an appeal (annexure R/1) which is pending before the Income-tax Commissioner (Appeals), Udaipur, and, therefore, when the petitioner has already availed of 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 dated ....
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....Comp Cas 705; [2000] 3 SCC 581; and (iv) K.S. Rashid and Son v. Income-tax Investigation Commission [1954] 25 ITR 167 (SC); AIR 1954 SC 207. The question whether the alternative remedy is equally efficacious or adequate or not is a question of fact to be decided in each case and the onus lies on the petitioner to show that it is not adequate. Where the petitioner had already availed of the remedy of appeal under the ordinary law, no petition under article 226, will ordinarily be entertained on the same questions, at least so long as those proceedings of appeal are not disposed of. In my opinion, the petitioner cannot be allowed to pursue two parallel remedies at the same time as in the present case not only that the alternative remedy is available to the petitioner, the petitioner had already availed of that remedy by filing appeal before the Income-tax Commissioner and that appeal is still pending and simply because the appeal has not been decided, it would not give a cause to the petitioner to file writ petition under article 226 of the Constitution of India. The High Court does not generally enter upon a determination of questions which demand an elaborate examination of ev....
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....5) of the Taxation of Income (Investigation Commission) Act and a reference has been made to the High Court in terms of that provision which is awaiting decision, it would not be proper to allow the petitioners to invoke the discretionary jurisdiction under article 226 of the Constitution at this stage ..." The case of K.S. Rashid and Son [1954] 25 ITR 167 (SC) clearly covers the point in dispute as the petitioner has already availed of the remedy of appeal by filing appeal before the appellate authority. Hence, jurisdiction under article 226 of the Constitution of India should not be exercised in favour of the petitioner. Similarly, in the case of Shriram Refrigeration Industries Ltd. v. CTO reported in [1994] 95 STC 488 (SC); AIR 1994 SC 1144 the hon'ble Supreme Court has held that when the appeal is pending before the appellate authority on the similar issue by the same party, the writ petition cannot be entertained. This authority also goes to the very root of the maintainability of the present writ petition. The hon'ble Supreme Court in the case of Basant Kumar Sarkar v. Eagle Rolling Mills Ltd. reported in [1964-65] 26 FJR 133; AIR 1964 SC 1260 has held that when alternati....
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.... existence of an alternative remedy is no ground for refusing prohibition or certiorari where- (a) the absence or excess of jurisdiction is patent and the application is made by the party aggrieved, or (b) there is an error apparent on the face of record, (c) there has been violation of the rules of natural justice, (d) where there has been a contravention of fundamental rights, (e) where the Tribunal acted under a provision of law which is ultra vires. Apart from this, when there is infringement of fundamental rights, where remedy cannot be said to be alternative and where remedy cannot be said to be adequate or equally efficacious and where the order is ultra vires, without jurisdiction or violative of natural justice, a writ petition under article 226 of the Constitution of India can be entertained. The rule requiring the exhaustion of alternative remedies before the grant of writ is a rule of policy, convenience and discretion for the guidance of the court rather than a rule of law meaning thereby that in exceptional cases, though there is alternative remedy, still the writ jurisdiction lies. In the present case, none of the abovementioned conditions are present and the....
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....ioner has directly approached this court under article 226 of the Constitution of India. For the above reason also, the petitioner would not be permitted to approach the High Court without exhausting the other alternative remedies available to it. Hence, it is held that the present writ petition is not maintainable as the petitioner has already availed of alternative remedy before the Commissioner (Appeals) by way of filing appeal and the same is still pending. That apart, if respondent No. 2 (Income-tax Officer, Banswara) in passing the order dated December 4, 2003 (annexure 4), has distinguished the law laid down in the judgment (annexure 3) in the case of Dhunseri Tea Industries [2001] 1 Tax Update 235 (Raj), it cannot be said that there was error apparent on the face of the record and, therefore, the argument of learned counsel for the petitioner by not following the judgment (annexure 3) in the case of Dhunseri Tea Industries [2001] 1 Tax Update 235 (Raj) illegality has been committed by respondent No. 2 (Income-tax Officer, Banswara), cannot be accepted at this stage because this aspect has to be thrashed out first by the appellate forum and other forum available and therea....