JUDGMENT
1. The petitioner was assessed to tax by an assessment order dated September 30, 1997 (block assessment), under Section 158BC of the Income-tax Act, 1961, (for short "the Act"). As a result of that assessment, a demand of Rs. 4,56,20,628 had fallen due against the petitioner. It is not disputed that the assessment order is not the subject-matter of challenge in this writ petition, against which an appeal has been preferred and is pending adjudication before the Income-tax Appellate Tribunal at Delhi.
2. The challenge before this court was confined to the notice dated November 6, 1997, issued under Section 226(3) of the Act addressed to Synthetics and Chemicals Ltd., Bareilly. The impugned notice, inter alia, recites that the block assessment under Section 158BC read with Section 158BD of the Act has been made on September 30, 1997, in the case of the petitioner and the demand of income-tax was created at Rs. 4,56,20,628. The notice of demand has been duly served upon the petitioner on October 4, 1997. Thus the demand of income-tax was payable on November 4, 1997, after the expiry of 30 days from the service of notice of demand. Paragraphs 2 and 3 of that notice read as under :
"2. You have intimated by your letter dated August 11, 1997, that total amount of Rs. 99,31,688 is payable to the assessee-AOP Mittal Coal Enterprises against its coal supply to the company. Out of this amount, Rs. 67,14,731 has been seized in the form of post-dated cheques which were deposited in the personal deposit account of the Commissioner of Income-tax, Lucknow. The remaining amount of Rs. 32,16,966 is also payable to the assessee which has been attached provisionally under Section 281B of the Income-tax Act, 1961, and has duly been intimated to you.
3. Notice under Section 226(3) of the Income-tax Act, 1961, is issued to you for depositing the amount of Rs. 32,16,966 in the Central Government a/c forthwith. The necessary challan is enclosed herewith for this purpose. You are, therefore, requested to deposit the said amount immediately after the receipt of this letter. In the case of failure in this regard I shall be constrained to take action against you in accordance with the provisions of Sections 222 to 225 of the Income-tax Act, 1961."
3. We have heard Sri C. S. Agarwal, learned counsel for the petitioner, and Sri Bharat Ji Agarwal, learned counsel for the respondents.
4. For the petitioner, two fold contentions were made. Firstly, that the petitioner had made an application dated November 7, 1997, before the Commissioner of Income-tax, Central, Kanpur, requesting for the withdrawal of the impugned notice dated November 6, 1997, for the reasons set out in that application. It was urged that no orders on that application have been passed by the Commissioner and, therefore, this court may interfere and direct that the impugned garnishee order be not given effect to. The second contention of the petitioner was that although the petitioner could approach the Income-tax Appellate Tribunal for stay of the recovery proceedings pending decision of the appeal before it, that remedy was not efficacious and was futile, for the Tribunal would not decide the stay application so long as the matter was pending before the Commissioner of Income-tax, Central, Kanpur, in pursuance of the application made by the petitioner referred to hereinabove.
5. We have considered these submissions carefully, but no case for interference has been made out. In the application dated November 7, 1997, addressed to the Commissioner of Income-tax, Central, Kanpur (annex-ure-6 to the writ petition), it is averred, inter alia, that the notice under Section 226(3) be withdrawn because an entity, called Goodluck Coal Company in its application dated October 4, 1996, filed under Section 245D of the Act before the Settlement Commission had owned all the transactions of the petitioner with Synthetics and Chemicals Ltd., Bareilly, and that application has been admitted by an order dated April 30, 1997, of the Settlement Commission. Further, the amount of Rs. 32,16,966 outstanding in the account books of Synthetics and Chemicals Ltd., as due to the petitioner belongs to Goodluck Coal Company. Thus, the same cannot be recovered against the demand due from the petitioner, i.e., Mittal Coal Enterprises.
6. Now, the fact that the petitioner has approached the Commissioner for withdrawal of the notice under Section 226(3) on certain allegations, in our opinion, is no good ground on which this court should interfere in the matter. It is not for this court to enter into the factual controversy stated by the petitioner, namely, as to whom the amount of Rs. 32,16,966 belongs to, which is sought to be recovered under the impugned garnishee order. Suffice it to say, that the assessing authority has not accepted the case set up by the petitioner and a definite finding to the contrary has been recorded in the assessment order.
7. In so far as the second submission is concerned, it is equally untenable. As already observed, an appeal against the assessment order is pending before the Income-tax Appellate Tribunal. The Tribunal has ample power in a given case to grant an interim protection to an appellant during the pendency of an appeal before it, if an application is made in that behalf and a case is made out for an interference. The petitioner on its own showing has not adopted that course so far. What would be the reaction of the Tribunal, if such an application is made by the petitioner, it is not for this court to speculate and to proceed on that basis. It is only after the petitioner has approached the Tribunal that a question might arise about the validity of the order that may be passed by it. No such situation arises for the present. As the petitioner has an alternative remedy to seek redressal of its grievances before such forum, as the petitioner may be advised in the matter, we see no justification to interfere with the impugned notice dated November 6, 1997.
8. For what has been stated above, the writ petition is rejected in limine.