2003 (11) TMI 64

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....rit petitioner as one of his legal heirs, it was detected that some of the investments of the deceased assessee had not been disclosed by him in his return and, therefore, the petitioner voluntarily filed returns for the concerned assessment years 1984-85 and 1987-88 to 1990-91 making complete and true disclosure of the income of the deceased assessee and also paid tax on the said income. On the application filed by the writ petitioner for reassessing the income, in course of the assessment proceeding, the petitioner was informed that some small amount of income for the assessment years 1983-84, 1985-86 and 1986-87 had not been disclosed and the petitioner was asked to file returns for the said assessment years also and to pay the taxes. ....

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....ner who refused to interfere, the Commissioner rejected the application for rectification by his order dated July 30, 1996. Challenging the said two orders, the writ application was filed which was decided by the judgment impugned in the present appeal. Mr. J.P. Khaitan, learned counsel for the appellant, advanced two contentions. The first contention of the appellant is that writ petition was dismissed holding that the order was appealable and therefore, for not availing of alternative remedy available, no interference was made. It is stated by learned counsel for the appellant that in fact against the impugned order no appeal lies and he referred to sections 253 and 246 of the Income-tax Act It is stated that the impugned order was pas....

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.... under section 246 of the Act and in this connection reference was made to subsection (c) thereof. It is stated that in such circumstances, remedy of appeal being available under section 246, the writ petition was rightly refused to be entertained. The second contention of the respondent is that the prayer for rectification was rightly refused as necessary grounds for rectification were not available to the petitioner and in such circumstances, the original order having merged in the rectification order, the contention with regard to the scope of sub-sections (1) and (4) of section 273A can no more be urged by the petitioner. After considering the aforesaid contentions of the respective parties and perusing the materials on record and al....

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....passed by the Commissioner of Income-tax is appealable either under section 246 or under section 253. Therefore, it appears that the writ petition could not be refused to be entertained on the ground of not availaing of any alternative statutory remedy. With regard to the scope of sub-section (1) and sub-section (4) of section 273A, it appears that the opening words of sub-section (4) "without prejudice to the powers conferred on him by any other provision of this Act..." make it clear that the said sub-section was not a provision overriding the provisions of sub-section (1) and is clearly a provision in addition to sub-section (1). The application filed by the petitioner admittedly is one filed under sub-section (1) of the said section.....