IN HIGH COURT OF JUDICATURE AT MADRAS Dated : 19-08-2019 Coram HONOURABLE MR. JUSTICE M.SUNDAR W.P.No.1896 of 2019 And W.M.P.No.2098 of 2019 M/s.Marina Ship Brokers, No.106, 48/39:Wavoo Mansion: Rajaji Salai, Parrys, Chennai-600 001 Represented by Partner B.Gopi .. Petitioner vs. Income Tax Officer, Non-Corporate Ward 11(2), 2nd Floor, Room No.203, BSNL Building, Tower II, No.16, Greams Road, Chennai-600 006. .. Respondent PRAYER : Writ Petition filed under Article 226 of Constitution of India praying for issuance of Writ of Certiorari, calling for records leading to issue of order of assessment for year 2013-14 dated 29.11.2018 issued by respondent against petitioner and quash same as illegal, arbitrary and devoid of merit. For Petitioner : Mr.Sandeep Bagmar R., for Mr.K.Gowtham Kumar. 1/32 http://www.judis.nic.in WP No.1896 of 2019 For Respondent : Mr.J.Narayanaswamy, Senior Standing Counsel (Income-tax). ORDER Mr.Sandeep Bagmar R., learned counsel representing learned counsel on record for writ petitioner and Mr.J.Narayanaswamy, learned Senior Standing Counsel (Income Tax) on behalf of sole respondent, are before this Court. 2. With consent of learned counsel on both sides, main writ petition is taken up, heard out and is being disposed of. 3. assessment order dated 29.11.2018 made by sole respondent qua writ petitioner assessee for assessment year 2013- 2014 (hereinafter 'said AY' for brevity) has been called in question in instant writ petition and this 'assessment order made by sole respondent, being assessment order dated 29.11.2018', shall hereinafter be referred to as 'impugned order' for sake of brevity, convenience and clarity. 2/32 http://www.judis.nic.in WP No.1896 of 2019 4. Impugned order has been made under Section 143 (3) of Income Tax Act, 1961 ('IT Act' for brevity), pursuant to order of remand made by 'Income Tax Appellate Tribunal', Chennai ('ITAT' for brevity) vide order dated 27.09.2017 in statutory Income Tax Appeal being ITA No.1956/Mds/2017. To be noted, this statutory appeal before ITAT is under Section 254 of IT Act and therefore, for all practical purposes impugned order has been made under Section 143(3) of IT Act read with Section 254 of IT Act. 5. Short facts shorn of micro details/particulars are that writ petitioner assessee made two donations in said AY. One is Rs.20 lakhs in favour of one 'Herbicure Healthcare Bio-Herbal Research Foundation' (hereinafter 'Herbicure Foundation' for brevity) and another is Rs.3 lakhs in favour of 'School of Human Genetics and Population Health' (hereinafter 'Genetics School' for brevity). 6. According to writ petitioner assessee, these two donations are eligible for exemption under Section 35(1)(ii) of IT Act. However, vide order of assessment dated 29.3.2016, these two donations were held to be not eligible for exemption/deduction and 175% of donations were added back to income of assessee. 3/32 http://www.judis.nic.in WP No.1896 of 2019 7. To be noted, vide this assessment order dated 29.03.2016, expenses claimed by writ petitioner assessee under one more head, i.e., business promotion expenses to tune of little over Rs.13 lakhs (Rs.13,14,362/- to be precise) was disallowed, but this was given quietus by writ petitioner assessee and is not before this Court now. 8. With regard to aforementioned two donations and eligibility under Section 35(1)(ii) of IT Act, writ petitioner assessee carried matter in appeal by way of regular statutory appeal under IT Act to Commissioner of Income Tax Appeals, who vide order dated 04.05.2017 dismissed appeal confirming assessment order made by Assessing Officer. Writ petitioner carried this matter further to ITAT by way of further statutory appeal under Section 254 of IT Act (as mentioned supra) and ITAT, vide aforementioned order dated 27.09.2017 set aside order of Assessing Officer as well as order of Commissioner of Income Tax Appeals and remitted matter back to Assessing Officer with certain directions. crux and gravamen of remittal order passed by ITAT is contained/articulated in paragraphs 6 to 8 of order of 4/32 http://www.judis.nic.in WP No.1896 of 2019 ITAT and same read as follows: '6. We have considered rival submissions on either side and perused relevant material available on record. From orders of lower authorities it appears that out of Rs.40 lakhs of net profit, Rs.23 lakhs was donated to two institutions at Kolkata for purpose of claiming deduction under Section 35(1)(ii) of Act. On basis of survey conducted by Revenue Authorities in premises of above said two research institutions at Kolkata, it was found that said institutions were providing accommodation entries by receiving bogus donation. One of Directors who was examined, categorically admitted that donations were received from various persons across country and after receiving small amounts of cash at 3% in initial year to 8% in later years, balance amount was returned back to companies/persons who are identified by donors. Some of funds also appear to have been refunded to donors through banking channel. From order of Assessing Officer it appears that one of institutions, namely, School of Human Genetics and Population Health moved Settlement Commission and admitted that they have provided accommodation entries in respect of bogus donations received by them. Similarly, Director of Herbicure Healthcare Bio Herbal Research Foundation has also admitted to have given 5/32 http://www.judis.nic.in WP No.1896 of 2019 accommodation entries after receiving commission. Assessing Officer after reproducing statement recorded from respective persons, has concluded that claim of donation more than 50% of profit was far-fetched one. 7. Now issue before this Tribunal is whether assessee is entitled to receive copy of statement and other material which were relied upon by Assessing Officer in assessment order? Revenue claims that as per Office Manual/ procedure, unless request was received from assessee for furnishing of copy of statement and other documents, Revenue need not provided such statement and documents. fact remains that proceeding before Assessing Officer is judicial proceeding under Section 136 of Act. When statement or other material collected by Assessing Officer or other income-tax authorities in course of investigation or enquiry, same has to be furnished to assessee and opportunity shall be given to assessee to rebut same. In India, we are following adversary system of judicial administration, therefore, no order can be passed against any person by judicial authorities/officers who are entrusted with judicial work without furnishing relevant copies of document and statement on which reliance was placed. 8. In this case, admittedly, Assessing Officer placed reliance on statement recorded 6/32 http://www.judis.nic.in WP No.1896 of 2019 during course of survey operation and other material found during course of survey operation. Principles of natural justice is one of cordial rule to be followed in adversary system of judicial administration. Rule of law is supreme in this country, therefore, unless it otherwise provided in relevant statute enacted by Legislature, principles of natural justice cannot be taken away by means of procedure or formalities prescribed in Office Manual which is meant for internal administration of Department. In this case, even Office Manual was not brought to notice of Bench even though Ld. D.R. claims that as per Office Manual, copies need to be furnished only on request. This Tribunal is of considered opinion that irrespective of request of assessee for copies of statement and documents, same shall be furnished to assessee in case Assessing Officer intended to rely on such statement and documents. In this case, copies of statement and other documents relied upon by Assessing Officer were not furnished to assessee, therefore, there was gross violation of principles of natural justice. Accordingly, orders of authorities below are set aside and entire issue is remitted back to file of Assessing Officer. Assessing Officer shall furnish copies of documents and statement to assessee and given sufficient opportunity to rebut same, and 7/32 http://www.judis.nic.in WP No.1896 of 2019 thereafter decide issue afresh in accordance with law.' 9. Post aforesaid order of ITAT, sole respondent before this Court, who is Assessing Officer, took up matter. When sole respondent took up matter in this manner, writ petitioner assessee wrote letter dated 27.08.2018 to respondent, making request to drop proceedings, respondent responded by way of communication dated 10.09.2018 and this was followed by exchange of another set of communication between writ petitioner and respondent assessee. This is letter dated 12.10.2018 from writ petitioner assessee and response to same from respondent assessee vide communication is dated 13.11.2018. To capture sum and substance of these communications between writ petitioner and respondent post remand, this Court considers it appropriate to extract relevant portions from said communications and most relevant portions of 27.08.2018 letter from writ petitioner are contained in paragraph-5 and next paragraph and same read as under: '5. No mention about receipt of bogus donation from M/s.Marina Shipbrokers in sworn statement submitted by Mrs.Samdrita Mukherjee Sardar: 8/32 http://www.judis.nic.in WP No.1896 of 2019 a. As per copies of survey report enclosed with letter to us we would like to state that on perusal of sworn statement of Mrs.Samdrita Mukherjee Sardar, there is no mention about receipt of Bogus donation from us (M/s.Marina Shipbrokers), hence we would like to seek as to how your goodself offices came to conclusion that we had resorted to unfair means and passed order against us. b. sworn statement was recorded under Section 133A wherein there are numerous judicial precedence that sworn statement cannot be taken as basis to reach conclusion in assessment. c. Whatever statement is recorded under Section 133A of Income Tax Act it is not given any evidentiary value obviously for reason that officer is not authorised to administer oath and to take any sworn statement which alone has evidentiary value 9/32 http://www.judis.nic.in WP No.1896 of 2019 as contemplated under law, vide Paul Mathews and Sons vs. CIT (2003) 263 ITR 101 (Ker). d. admission is extremely important piece of evidence but it cannot be said that it is conclusive and it is open to person who made admission to show that it is incorrect and that assessee should be given proper opportunity to show that books of accounts do not correctly disclose correct state of fats, vide decision of Apex Court in Pullangode Rubber Producer Co. Ltd. vs. State of Kerala, [1973] 91 ITR 18. e. Hence as per point c. stated above we request you to kindly give as evidence with proper supporting material so as to understand that material was used against us as evidence for establishing bogus donation. It is submitted that there is no acceptable and cogent evidence to show that claim made by us is not true or correct. Since there are conflicting 10/32 http://www.judis.nic.in WP No.1896 of 2019 evidences made available by same parties, hence it is submitted that it has to be found that this is not fit case and assessment proceedings may be dropped.' 10. Respondent responded to same as mentioned supra vide communication dated 10.09.2018 and most relevant portion of this reply reads as under: 'As per directions of Hon'ble ITAT, documents were furnished to you vide this office letter dated 17.01.2018. assessment was competed based on statements recorded at time of survey from Smt.Samandrita Mukerjee Sardar, Secretary of Ms.School of Human Genetics & Population Health and Sri.Swapan Rajan Das Gupta, Founder Director of Ms.Herbicure Healthcare Bio- Herbal research Foundation. same documents were furnished to you as per directions of Hon'ble ITAT. Documents received from higher authorities in this Office relates to Survey report and related papers which are confidential in nature, hence entire documents cannot be furnished.' 11. This takes us to next set of communications and with regard to 12.10.2018 communication from writ petitioner, 11/32 http://www.judis.nic.in WP No.1896 of 2019 relevant portion reads as under: 'Kindly provide us with following as per directions of Hon ITAT: Copy of investigation report conducted by your good self which clearly implicates US and also establishes that donation made were bogus in nature. As per Principle of Natural Justice, we request you to provide us with opportunity to cross examine parties whose sworn statements are being used to implicate US. Failure to carry out thorough investigation as per directions of Hon ITAT will be construed as contempt of Court, hence we request you to carry out thorough investigation and provide us with evidence to prove that decision to pass adverse order against us is Justifiable.' 12. Writ petitioner responded vide 13.11.2018 reply and same reads as under: 'The Hon'ble ITAT vide their order dated 27.09.2017, has categorically directed Assessing Officer to provide documents relied upon and not anything beyond that. Hence, your request made in your letter dated 12.10.2018 for cross- examination of parties from whose statements 12/32 http://www.judis.nic.in WP No.1896 of 2019 were recorded, cannot be considered and hence rejected.' 13. After aforesaid two sets of communications, respondent has written one more letter dated 19.11.2018, reiterating its earlier request and thereafter impugned order came to be passed. 14. In hearing today, learned counsel for writ petitioner, adverting to impugned order, submitted that it refers to sworn statements from Secretary of Genetics School and Founder Director of Herbicure Foundation. impugned order mentions that in these sworn statements, these two individuals have admitted to having given accommodation entries by way of commission to different beneficiaries in guise of donation receipts to be finally given back to donors in form of cash or cheque. 15. There is no disputation or disagreement before this Court that relevant portions of Survey Report was no doubt furnished to writ petitioner assessee post remand by ITAT. Therefore pivotal issue on which writ petition was argued is 13/32 http://www.judis.nic.in WP No.1896 of 2019 writ petitioner's request to cross-examine aforesaid two individuals namely Secretary of Genetics School and Founder Director of Herbicure Foundation. 16. To support his argument, learned counsel for writ petitioner pressed into service judgment of this Court in Commissioner of Income-Tax vs. S.Khader Khan Son reported in [2008] 300 ITR 157 (Mad). Before this Court adverts to Khader Khan case, reported in [2008] 300 ITR 157 (Mad) [rendered by Division Bench of this Court], it is necessary to mention that Khader Khan case was carried to Supreme Court and Hon'ble Supreme Court vide order dated 20.09.2012 made in Civil Appeal No.6747 of 2012 confirmed order of Division Bench of this Court vide judgment of Hon'ble Supreme Court in Commissioner of Income-Tax vs. S.Khader Khan Son reported in [2013] 352 ITR 480 (SC). What is of utmost relevance is [2013] 352 ITR 480 (SC) order was made by Hon'ble Supreme Court post leave, i.e., in second part of Article 136 of Constitution of India. Therefore there is doctrine of merger and therefore Division Bench order in Khader Khan case has merged with Supreme Court order and resultantly precedent value of Khader Khan case is that of ratio of Hon'ble Supreme Court. Khader 14/32 http://www.judis.nic.in WP No.1896 of 2019 Khan case was pressed into service by learned counsel on this basis. principle in Khader Khan's case is that statement made under Section 133A of IT Act does not have evidentiary value as Officer of Income Tax Department is not authorized to administer oath and take any sworn statement. Relying on Khader Khan principle, it was submitted that sworn statement made by two individuals in instant case, namely, Secretary of Genetics School and Founder Director of Healthcare Foundation does not have any evidentiary value and therefore respondent assessee ought not to have relied on same without giving opportunity to writ petitioner to cross- examine two individuals. Furthering his argument in this direction, learned counsel for writ petitioner referred to relevant portions of Survey Report which was furnished to writ petitioner post remand by ITAT and submitted that Founder Director of Healthcare Foundation has deposed that accommodation of bogus donations was facilitated by one Kishan Bhawasingka. It was submitted that neither Kishan Bhawasingka's statement was furnished to writ petitioner nor any cross-examination permitted. 17. Furthering his submissions in this direction, learned counsel for writ petitioner submitted that this is clearly violation of 15/32 http://www.judis.nic.in WP No.1896 of 2019 'natural justice principle' ('NJP' for brevity). 18. Responding to aforesaid submissions, learned Revenue Counsel submitted that what is of utmost importance is that aforesaid two sworn statements from two individuals alone do not constitute basis of impugned order. In other words, it was submitted by learned Revenue Counsel that there are other corroborating material before Court and impugned order was passed based on such corroborating material. 19. It was also pointed out that respondent has come to conclusion that it is not just case of accommodation being provided, but it is also case where cash was rerouted to writ petitioner assessee. In this regard, learned Revenue Counsel drew attention of this Court to paragraph-8 of counter-affidavit which reads as under: '8. It is submitted that in all petitioner had given donation to claim weighter deduction of 175% to organisation which in turn had merely issues receipt by providing accommodation entry and thereby cash was rerouted to petitioner itself. It was clearly 16/32 http://www.judis.nic.in WP No.1896 of 2019 brought out by Investigation Wing of Calcutta Region and therefore, it is not fit case for entertaining in writ jurisdiction and is liable to be rejected as it involves appreciation of facts. Therefore, writ petition is liable to be rejected on ground of alternative remedy as well as devoid of merits. (Underlining made by this Court to supply emphasis and highlight)' 20. This Court notices that writ petitioner has not filed any rejoinder and disputed this aspect of matter. 21. In this regard, it is also to be noted that even in first round of assessment order i.e., assessment order dated 29.03.2016, as pointed out by learned Revenue Counsel, there is clear mention that alleged donations were routed back to writ petitioner. This is articulated in paragraph-6 of earlier assessment order dated 29.03.2016 and relevant portion in paragraph-6 reads as under: 'However, evidences gathered during course of surveys found that transactions were not genuine as donors merely took accommodation entries and alleged donations 17/32 http://www.judis.nic.in WP No.1896 of 2019 were routed back to them after deduction of commission by entry provider at various stages.' 22. Adverting to aforesaid scenario, learned Revenue Counsel submitted that this is not case of improving impugned order by way of counter-affidavit as even in earlier round, it was clearly put against writ petitioner that donations were routed back to writ petitioner and this remains unrefuted. 23. Responding to above, learned counsel for writ petitioner submitted that they will now be in position to refute and demonstrate that there was no routing back. This, in considered opinion of this Court, turns on factual aspects of case. 24. In this regard, learned counsel for writ petitioner pointed out that statutory appeal remedy is available to writ petitioner, by way of statutory appeal to Commissioner of Income Tax Appeals under Section 246A of IT Act. perusal of Section 246A of IT Act reveals that instant case will fall under Section 246A(1)(a). 18/32 http://www.judis.nic.in WP No.1896 of 2019 25. Before adverting to alternate remedy, it is also necessary to notice that question of permitting cross-examination will turn heavily on facts and circumstances of each case. In instant case, question as to whether there was routing back at all is very crucial question, which will impact writ petitioner's right to seek cross-examination. In this regard, judgment of Hon'ble Supreme Court in Andaman Timber Industries vs. Commissioner of Customs Excise, Kolkata-II reported in MANU/SC/1250/2015 is of significance, relevant paragraph is paragraph-6 and same reads as under: '6. As mentioned above, Appellant had contested truthfulness of statements of these two witnesses and wanted to discredit their testimony for which purpose it wanted to avail opportunity of cross-examination. That apart, adjudicating authority simply relied upon price list as maintained at depot to determine price for purpose of levy of excise duty. Whether goods were, in fact, sold to said dealers/witnesses at price which is mentioned in price list itself could be subject-matter of cross-examination. Therefore, it was not for adjudicating authority to presuppose as to what could be subject-matter of cross- examination and make remarks as mentioned 19/32 http://www.judis.nic.in WP No.1896 of 2019 above. We may also point out that on earlier occasion when matter came before this Court in Civil Appeal No.2216 of 2000, order dated 17-3- 2005 [2005 (187) E.L.T. A33 (S.C.)] was passed remitting case back to Tribunal with directions to decide appeal on merits giving its reasons for accepting or rejecting submissions.' 26. In this view of matter, it is also necessary to examine as to whether alternate remedy in instant case will be effective and efficacious. In other words, it would be appropriate to make contra-test as to whether alternate remedy will become ineffectual or not efficacious in light of discussion thus far. 27. With view to carry out this contra-test, this Court examined procedure for 'Commissioner of Income Tax Appeals' ('CIT-A' for brevity). procedure for CIT-A to hear statutory appeal under Section 246A(1)(a) is adumbrated in Section 250 of IT Act. Most relevant portion of Section 250 is sub-section (4) and this Court deems it appropriate to extract Section 250(4) of IT Act which reads as under: '250. Procedure in appeal. 20/32 http://www.judis.nic.in WP No.1896 of 2019 (1) .. .. .. .. .. .. .. .. .. (2) .. .. .. .. .. .. .. .. .. (3) .. .. .. .. .. .. .. .. .. (4) [Commissioner (Appeals)] may, before disposing of any appeal, make such further inquiry as he thinks fit, or may direct Assessing Officer to make further inquiry and report result of same to [Commissioner (Appeals)].' 28. perusal of sub-section (4) of Section 250 of IT Act makes it clear that Statutory Appellate Authority namely CIT-A has powers to make further inquiry by himself or direct Assessing Officer to make further inquiry, report result and thereafter dispose of statutory appeal on basis of such inquiry conducted by himself or on basis of post inquiry report from Assessing Officer in this regard. 29. In light of sub-section (4) of Section 250, it is clear that if writ petitioner is relegated to alternate remedy of appeal under Section 246A(1)(a) of IT Act, in instant case, appeal will not be ineffectual or not efficacious. In other words, appeal has ample and adequate scope to permit writ petitioner to raise this 21/32 http://www.judis.nic.in WP No.1896 of 2019 issue of cross-examination and Appellate Authority can also look into same in light of factual disputes pertaining to factual issue of re-routing and thereafter decide appeal. 30. This takes us to alternate remedy as principle. 31. With regard to exercise of writ jurisdiction on teeth of alternate remedy, restraint which Writ Courts have placed on themselves is self-imposed restraint. In other words, Rule of alternate remedy is clearly self-imposed restraint. It follows as sequitur that alternate remedy rule is not rule of compulsion and it is rule of discretion. To put it differently, alternate remedy rule is not absolute rule, but it is rule of discretion. Though alternate remedy rule is rule of discretion and it is self-imposed restraint qua Writ Courts, Hon'ble Supreme Court has repeatedly held that alternate remedy rule has to be applied with utmost rigour when it comes to matters pertaining to recovery of tax, cess, etc., 32. This Court reminds itself of Dunlop case, being Assistant Collector of Central Excise vs. Dunlop India Ltd reported in (1985) 1 SCC 260 and relevant paragraphs in Dunlop 22/32 http://www.judis.nic.in WP No.1896 of 2019 case are paragraphs 3 and 4 and same read as under: '3. In Titaghur Paper Mills Co. Ltd. v. State of Orissa [(1983) 2 SCC 433 : 1983 SCC (Tax) 131 : 1983 Tax LR 2905 : (1983) 142 ITR 663 : (1983) 53 STC 315] A.P. Sen, E.S. Venkataramiah and R.B. Misra, JJ. held that where statute itself provided petitioners with efficacious alternative remedy by way of appeal to Prescribed Authority, second appeal to tribunal and thereafter to have case stated to High Court, it was not for High Court to exercise its extraordinary jurisdiction under Article 226 of Constitution ignoring as it were, complete statutory machinery. That it has become necessary, even now, for us to repeat this admonition is indeed matter of tragic concern to us. Article 226 is not meant to short-circuit or circumvent statutory procedures. It is only where statutory remedies are entirely ill-suited to meet demands of extraordinary situations, as for instance where very vires of statute is in question or where private or public wrongs are so inextricably mixed up and prevention of public injury and vindication of public justice require it that recourse may be had to Article 226 of Constitution. But then Court must have good and sufficient reason to bypass alternative remedy provided by statute. Surely matters involving revenue where statutory remedies are 23/32 http://www.judis.nic.in WP No.1896 of 2019 available are not such matters. We can also take judicial notice of fact that vast majority of petitions under Article 226 of Constitution are filed solely for purpose of obtaining interim orders and thereafter prolong proceedings by one device or other. practice certainly needs to be strongly discouraged. 4. In Union of India v. Oswal Woollen Mills Ltd. [(1984) 2 SCC 646 : 1984 SCC (Cri) 348] we had occasion to consider interim order passed by Calcutta High Court in regard to matter no part of cause of action relating to which appeared to arise within jurisdiction of Calcutta High Court. In that case interim order practically granted very prayers in writ petition. We were forced to observe: [SCC para 4, pp. 649-50: SCC (Cri) p. 352] It is obvious that interim order is of drastic character with great potential for mischief. principal prayer in writ petition is challenge to order made or proposed to be made under clause 8-B of Import Control Order. interim order in terms of prayers (j) and (k) has effect of practically allowing writ petition at stage of admission without hearing opposite parties. While we do not wish to say that drastic interim order may never be passed without hearing opposite parties even if circumstances justify it, we are very firmly of 24/32 http://www.judis.nic.in WP No.1896 of 2019 opinion that statutory order such as one made in present case under clause 8-B of Import Control Order ought not to have been stayed without at least hearing those that made order. Such stay may lead to devastating consequences leaving no way of undoing mischief. Where plentitude of power is given under statute, designed to meet dire situation, it is no answer to say that very nature of power and consequences which may ensue is itself sufficient justification for grant of stay of that order, unless, of course, there are sufficient circumstances to justify strong prima facie inference that order was made in abuse of power conferred by statute. statutory order such as one under clause 8-B purports to be made in public interest and unless there are even stronger grounds of public interest ex parte interim order will not be justified. only appropriate order to make in such cases is to issue notice to respondents and make it returnable within short period. This should particularly be so where offices of principal respondents and relevant records lie outside ordinary jurisdiction of court. To grant interim relief straightaway and leave it to respondents to move court to vacate interim order may jeopardise public interest. It is notorious how if interim order is once made by court, parties employ 25/32 http://www.judis.nic.in WP No.1896 of 2019 every device and tactic to ward off final hearing of application. It is, therefore, necessary for courts to be circumspect in matter of granting interim relief, more particularly so where interim relief is directed against orders or actions of public officials acting in discharge of their public duty and in exercise of statutory powers. On facts and circumstances of present case, we are satisfied that no interim relief should have been granted by High Court in terms in which it was done. [Underlining made by this Court to supply emphasis and highlight] 33. More than one and half decades after Dunlop case, in Satyawadi Tandon Case, [United Bank of India Vs. Satyawati Tondon and others reported in (2010) 8 SCC 110] and K.C.Mathew case [Authorized Officer, State Bank of Travancore Vs. Mathew K.C. reported in (2018) 3 SCC 85] were restated. To be noted, Satyawati Tondon principle was reiterated in latter of two i.e., K.C.Mathew. In Satyawati Tondon case and K.C.Mathew case regarding rule of alternate remedy, principle that such rule, though rule of discretion and not rule of compulsion, should be exercised with greater rigour in fiscal law statutes has been laid down. 26/32 http://www.judis.nic.in WP No.1896 of 2019 More importantly, in Satyawati Tondon case, Hon'ble Supreme Court held that such rule has to be applied with utmost rigour when it comes to cases involving taxes, cess, fees etc., In other words, when it comes to fiscal statutes, these rules have to be applied with greater rigour and it is to be applied very strictly with regard to recovery of taxes, CESS, fess etc., Relevant paragraph in K.C.Mathew case (cited supra) is paragraph 10 and same reads as follows: '10. In Satyawati Tondon High Court had restrained further proceedings under Section 13(4) of Act. Upon detailed consideration of statutory scheme under SARFAESI Act, availability of remedy to aggrieved under Section 17 before Tribunal and appellate remedy under Section 18 before Appellate Tribunal, object and purpose of legislation, it was observed that writ petition ought not to be entertained in view of alternate statutory remedy available holding: (SCC pp.123 & 128, Paras 43 & 55) 43. Unfortunately, High Court overlooked settled law that High Court will ordinarily not entertain petition under Article 226 of Constitution if effective remedy is available to aggrieved person and that this Rule applies with greater rigour in matters involving recovery of taxes, cess, fees, 27/32 http://www.judis.nic.in WP No.1896 of 2019 other types of public money and dues of banks and other financial institutions. In our view, while dealing with petitions involving challenge to action taken for recovery of public dues, etc., High Court must keep in mind that legislations enacted by Parliament and State Legislatures for recovery of such dues are code unto themselves inasmuch as they not only contain comprehensive procedure for recovery of dues but also envisage constitution of quasi-judicial bodies for redressal of grievance of any aggrieved person. Therefore, in all such cases, High Court must insist that before availing remedy under Article 226 of Constitution, person must exhaust remedies available under relevant statute. 55.It is matter of serious concern that despite repeated pronouncement of this Court, High Courts continue to ignore availability of statutory remedies under DRT Act and SARFAESI Act and exercise jurisdiction under Article 226 for passing orders which have serious adverse impact on right of banks and other financial institutions to recover their dues. We hope and trust that in future High Courts will exercise their discretion in such matters with greater caution, care and circumspection. [underlining made by this Court to highlight 28/32 http://www.judis.nic.in WP No.1896 of 2019 and supply emphasis]' 34. In light of narrative thus far, this Court is clear that it is fit case to relegate writ petitioner to alternate remedy making it clear that all questions raised by writ petitioner including questions pertaining to cross-examination can be raised by writ petitioner before CIT-A and issue of whether cash was rerouted to writ petitioner being factual dispute can also be gone into by CIT-A for taking decision on writ petitioner's request for cross- examination. 35. With regard to alternate remedy of statutory appeal before CIT-A under Section 246A(1)(a) of IT Act in instant case, same has to be filed within 30 days from date of service of notice of demand. In instant case, notice of demand as per usual practice was served along with impugned order dated 29.11.2018 and it was served on writ petitioner on 24.12.2018. Before expiry of 30 days therefrom, instant writ petition has been presented before this Court on 22.01.2019. Therefore, this Court 29/32 http://www.judis.nic.in WP No.1896 of 2019 deems it appropriate to exclude period spent by writ petitioner in instant writ petition i.e., period from 22.01.2019 to date on which copy of this order is made available, by applying principle adumbrated in Section 14 of Limitation Act. 36. Notwithstanding such exclusion, even if delay occurs, same is condonable under Section 249(3) of IT Act and there is no cap for same. power to condone delay is vested with CIT- A. If need arises to writ petitioner to seek condonation of delay, notwithstanding exclusion of time spent in instant writ petition, it is open to writ petitioner to file delay condonation application before CIT-A and same shall be decided by CIT-A on its own merits and in accordance with law. 37. As this Court is now relegating writ petitioner to alternate remedy of statutory appeal before CIT-A, though obvious it is made clear that all questions raised by writ petitioner in instant writ petition, including grounds canvassed and contentions urged are left open. With regard to scope of appeal itself, same has been alluded to and set out supra elsewhere in this order. If writ petitioner chooses to file statutory appeal, same shall be 30/32 WP No.1896 of 2019 decided by Appellate Authority namely CIT-A keeping in mind observations of this Court regarding scope of appeal, more particularly, Section 250(4) of IT Act. 38. Writ petition is disposed of with above directions. There shall be no order as to costs. Consequently, connected miscellaneous petition is closed. 19-08-2019 Speaking/Non Speaking Order: Yes/No. Internet : Yes/No. Index: Yes/No. Svn To Income Tax Officer, Non-Corporate Ward 11(2), 2nd Floor, Room No.203, BSNL Building, Tower II, No.16, Greams Road, Chennai-600 006. 31/32 http://www.judis.nic.in WP No.1896 of 2019 M.SUNDAR.J., Svn W.P.No.1896 of 2019 19-08-2019 32/32 Marina Ship Brokers v. Income-tax Officer, Non-Corporate Ward-11(2), Chennai