TaxTMI 
TaxTMI 
TaxTMI 
2022 (7) TMI 1016
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....ng the relevant documents that are available on record; (C) Pending admission, hearing and final disposal of this petition, this Hon'ble Court may be pleased to stay the operation, execution and implementation of the order dated 18.07.2014 passed by the Income- Tax Appellate Tribunal, 'A' Bench, Ahmedabad in ITA No.874/AHD/2011; (D) This Hon'ble Court may be pleased to grant such other and further relief and/or order in the interest of justice in favour of the petitioner." 2. The brief facts, which emerges from the record of the present petition, are summarized as under: 2.1 The writ applicant has filed return of income for the A.Y. 2007-08 on 31.10.2007 thereby declaring the total income as "NIL" after claiming deduction under Section 80IB(10) of the Income Tax Act, 1961 (herein after referred to as "the Act") amounting to Rs.25,69,952/-. The case of the writ applicant was selected for scrutiny assessment and notices in regard thereof were issued upon the writ applicant. The writ applicant had appeared before the Assessing Officer through his authorized representative in order to substantiate its claim under Section 80IB of the Act. Relevant documents in the nature of app....
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....annot dismiss the appeal without adverting to the merits. Even on the day on which the hearing is adjourned, the appellant chose not to appear in present or through an authorized representative. It would incumbent upon the tribunal to dispose of the appeal on merits. Mr. Dave, the learned counsel seeks to rely on the decision of this High Court in the case of Sanket Estate & Finance (P.) Ltd. Vs. Commissioner of Income-tax [2013] 32 taxmann.com 342 (Gujarat). 3. Let Notice be issued to the respondents for final disposal, returnable on 10/02/2021. On the returnable date, notify the matter on top of the board." 4. Mr. Manish R. Bhatt, the learned Senior Counsel assisted by Mr. Munjaal Bhatt, the learned counsel, has entered his appearance on behalf of the respondent authorities. Mr. Bhatt, has vehemently objected to the maintainability of the writ application by drawing attention of this Court to the reliefs so sought for in the present writ application. Mr. Bhatt, the learned Senior Counsel has further submitted that the order under challenge is dated 18.07.2014 passed by the Appellate Tribunal dismissing the appeal of the Assessee for nonprosecution whereas the present petitio....
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....makes it abundantly clear that the Tribunal cannot dismiss the appeal without adverting to the merits. Even on the day on which the hearing is adjourned, the appellant chose not to appear in person or through an authorised representative. It is incumbent upon the Tribunal to dispose of the appeal on merits after hearing the respondent and afterwards if the appellant appears and satisfy the Tribunal, sufficient cause for its non-appearance on the date of hearing, the Tribunal can set aside the ex-parte order and restore the appeal. However, reliance of the Tribunal on the decision of the Delhi Bench in the case of CIT vs. Multiplan India (P) Ltd (supra) is erroneous and, therefore, requires to be set aside. In the instant case, it can be noted from the letters addressed by the present appellant to the Tribunal that it was awaiting transfer of both the appeals of 1998-99 and 1999-2000 since CIT (Appeals) had relied upon such orders of earlier years. 25. If the record of these appeals were necessary for proceedings with the appeals, which were pending of the year 2001 to 2002, 2002-03, in the instant case, it was a matter of transfer from Mumbai Bench to the Ahmedabad Bench of thes....
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....ion of principles of natural justice, the learned counsel appearing for the writ applicant had submitted that writ jurisdiction of this Court is the only efficacious remedy available for the writ applicant and has therefore, prayed to entertain the writ application and to grant the reliefs so sought for. 10. At the outset, we take note of the fact about the preliminary objection raised by the learned counsel for the department as regards the maintainability of the present petition. Admittedly, the order impugned in the present writ application is dated 18.07.2014 passed by the Income Tax Appellate Tribunal, 'A' Bench, Ahmedabad, in exercise of powers conferred under Section 253 of the Act, it is equally true that the order impugned is dated 18.07.2014 and the writ petition has been affirmed by the writ applicant on 28.10.2020, whereby the Notice came to be issued by this Court vide order dated 12.01.2021. Hence, there is no escape to the fact that the statutory appeal provided under Section 260A of the Act before this Court is time barred as on date of filing of this writ application. In the peculiar facts and circumstances of the case, the limited issue which falls for our consid....
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.... (6) The High Court may determine any issue which- (a) has not been determined by the Appellate Tribunal; or (b) has been wrongly determined by the Appellate Tribunal, by reason of a decision on such question of law as is referred to in sub-section (1). (7) Save as otherwise provided in this Act, the provisions of the Code of Civil Procedure, 1908 (5 of 1908), relating to appeals to the High Court shall, as far as may be, apply in the case of appeals under this section." 12. Thus, Section 260A of the Act pertains to the statutory appeal provided before this Court from every order passed in appeal by the Tribunal. On interpretation of Section 260A of the Act, it is evident that High Court is conferred with jurisdiction to admit if, the High Court is satisfied that the case involves substantial question of law. The bare reading of sub section (2) (a) of Section 260 implies the period of limitation of 120 days for filing an appeal before this Court against the every order passed in appeal by the Tribunal. The said statutory provision itself makes it clear that the appeal shall be filed within 120 days from the date on which the order appeal against is received by the asses....
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....ve sides, it would be appropriate to first consider the scope and ambit of the power under Article 226 of the Constitution. As such, the question is no more res integra when the jurisdiction of the High Court to entertain the petition for writ of certiorari under Article 226 of the constitution or power of superintendence under Article 227 of the Constitution against the orders are to be considered. It can hardly be disputed that the power of this Court under Articles 226 and 227 of the Constitution are conferred by the Constitution and cannot be diluted or nullified by any statute or legislation. At this stage, useful reference can be made to the decision of the Apex Court in the case of Surya Dev Rai V. Ram Chander Rai (2003) 6 SCC 675 wherein the question came up for consideration before the Apex Court as to whether the amendment made in the Code of Civil Procedure under section 115 would in any manner affect the jurisdiction under Articles 226 and 227 of the Constitution. The Apex Court in the said decision, after considering various decisions, concluded at para 38 as under: "38. Such like matters frequently arise before the High Courts. We sum up our conclusions in a nutshe....
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....en to take one view the error cannot be called gross or patent. (7) The power to issue a writ of certiorari and the supervisory jurisdiction are to be exercised sparingly and only in appropriate cases where the judicial conscience of the High Court dictates it to act lest a gross failure of justice or grave injustice should occasion. Care, caution and circumspection need to be exercised, when any of the abovesaid two jurisdictions is sought to be invoked during the pendency of any suit or proceedings in a subordinate court and the error though calling for correction is yet capable of being corrected at the conclusion of the proceedings in an appeal or revision preferred there against and entertaining a petition invoking certiorari or supervisory jurisdiction of High Court would obstruct the smooth flow and/or early disposal of the suit or proceedings. The High Court may feel inclined to intervene where the error is such, as, if not corrected at that very moment, may become incapable of correction at a later stage and refusal to intervene would result in travesty of justice or where such refusal itself would result in prolonging of the lis. (8) The High Court in exercise of ce....
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....he aforesaid decision was considered by the Apex Court in the case of Mahendra Saree Emporium vs. G.V. Srinivasa Murthy reported at (2005) 1 SCC 481, wherein while considering the aspects as to whether any legislation subordinate to the Constitution can whittle down the power under the Constitution of the Apex Court under Article 226 of the Constitution. It was held that any legislation subordinate to the Constitution cannot whittle down the jurisdiction and power conferred on the constitutional courts of the country. 24. Once again, in the case of Salem Advocate Bar Association, T.N. vs. Union of India reported at (2005) 6 SCC 344, the question arose before the Apex Court was as to whether amendment made under section 115 of the Code of Civil Procedure would take away the constitutional jurisdiction of the High Court or not. It was held by the Apex Court after considering the earlier decision of the Apex Court in the case of Surya Dev Rai (supra) that curtailment of revisional jurisdiction of the High Court under Section 115 of the Code of Civil Procedure does not take away and could not have taken away the constitutional jurisdiction of the High Court. But it was also further ....
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....or set aside the act or set aside the proceeding, but cannot substitute its own decision in place thereof. The High Court while exercising the power has to apply self restraint. It was well summed up by the Apex Court in the case of Surya Dev Rai (supra) that the power is there but the exercise is discretionary which will be solely governed by the dictate of the judicial conscience, enriched by judicial experience and practical wisdom of the Judge. 27. The aforesaid discussion goes to show that it is not possible to observe that in a case where the limitation period of preferring appeal or further period of condonation of delay is over, the High Court will have no jurisdiction under Article 226 of the Constitution but the exercise of such power has to be in exceptional cases where gross injustice is satisfactorily demonstrated. Otherwise, in normal circumstances, the High Court would give appropriate weightage to the statutory provisions because the things which cannot be done directly as per the statute can not be permitted to be done indirectly in writ jurisdiction unless a grave and strong case is made out before the High Court that noninterference to the order under challeng....
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....circumstances unless the High Court finds that there is extraordinary case satisfactorily demonstrated before it of grave injustice or non interference by the High Court would result into gross injustice. 30. We may now proceed to answer the question : (1) Question No.1 is answered in negative by observing that the limitation provided under section 35 of the Act cannot be condoned in filing the appeal beyond the period of 30 days as provided by the proviso nor the appeal can be filed beyond the period of 90 days. (2) The second question is answered in negative to the extent that the petition under Article 226 of the Constitution would not lie for the purpose of condonation of delay in filing the appeal. (3) On the third question, the answer is in affirmative, but with the clarification that: A) The petition under Article 226 of the Constitution can be preferred for challenging the order passed by the original adjudicating authority in following circumstances that A.1) The authority has passed the order without jurisdiction and by assuming jurisdiction which there exist none, or A.2) Has exercised the power in excess of the jurisdiction and by overstepping or cr....
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....not entertain the writ petition, if an alternative effective remedy is available to the aggrieved person. In paragraph 7, the Court observed thus: "7. Against the order of the Commissioner an order for reference could have been claimed if the appellants satisfied the Commissioner or the High Court that a question of law arose out of the order. But the procedure provided by the Act to invoke the jurisdiction of the High Court was bypassed, the appellants moved the High Court challenging the competence of the Provincial Legislature to extend the concept of sale, and invoked the extraordinary jurisdiction of the High Court under Article 226 and sought to reopen the decision of the Taxing Authorities on question of fact. The jurisdiction of the High Court under Article 226 of the Constitution is couched in wide terms and the exercise thereof is not subject to any restrictions except the territorial restrictions which are expressly provided in the Articles. But the exercise of the jurisdiction is discretionary: it is not exercised merely because it is lawful to do so. The very amplitude of the jurisdiction demands that it will ordinarily be exercised subject to certain self-imposed l....
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....stitution. It is now well recognised that where a right or liability is created by a statute which gives a special remedy for enforcing it, the remedy provided by that statute only must be availed of. This rule was stated with great clarity by Willes, J. in Wolverhampton New Waterworks Co. v. Hawkesford [(1859) 6 CBNS 336, 356] in the following passage: There are three classes of cases in which a liability may be established founded upon statute. . . . But there is a third class, viz. where a liability not existing at common law is created by a statute which at the same time gives a special and particular remedy for enforcing it.... The remedy provided by the statute must be followed, and it is not competent to the party to pursue the course applicable to cases of the second class. The form given by the statute must be adopted and adhered to. The rule laid down in this passage was approved by the House of Lords in Neville v. London Express Newspapers Ltd. (1919 AC 368) and has been reaffirmed by the Privy Council in Attorney-General of Trinidad and Tobago v. Gordon Grant & Co. Ltd. (1935 AC 532) and Secretary of State v. Mask & Co. (AIR 1940 PC 105). It has also been held to ....
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....Hongo India Private Limited & Anr. Chhattisgarh State Electricity Board vs. Central Electricity Regulatory Commission & Ors. and Suryachakra Power Corporation Limited vs. Electricity Department represented by its Superintending Engineer, Port Blair & Ors.17 and concluded that Section 5 of the Limitation Act, 1963 cannot be invoked by the Court for maintaining an appeal beyond maximum prescribed period in Section 125 of the Electricity Act. 13. The principle underlying the dictum in this decision would apply proprio vigore to Section 31 of the 2005 Act including to the powers of the High Court under Article 226 of the Constitution. Notably, in this decision, a submission was canvassed by the assessee that in the peculiar facts of that case (as urged in the present case), the Court may exercise its jurisdiction under Article 142 of the Constitution, so that complete justice can be done. This argument has been considered and plainly rejected in the following words: "12. In A.R. Antulay v. R.S. Nayak, (1988) 2 SCC 602, while explicating and elaborating the principles under Article 142, Sabyasachi Mukharji, J. (as his Lordship then was) opined thus: (SCC p. 656, para 50) "50. .....
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....ion of India & Ors. and also of the Karnataka High Court in Phoenix Plasts Company vs. Commissioner of Central Excise (Appeal-I), Bangalore20. The logic applied in these decisions proceeds on fallacious premise. For, these decisions are premised on the logic that provision such as Section 31 of the 1995 Act, cannot curtail the jurisdiction of the High Court under Articles 226 and 227 of the Constitution. This approach is faulty. It is not a matter of taking away the jurisdiction of the High Court. In a given case, the assessee may approach the High Court before the statutory period of appeal expires to challenge the assessment order by way of writ petition on the ground that the same is without jurisdiction or passed in excess of jurisdiction-by overstepping or crossing the limits of jurisdiction including in flagrant disregard of law and rules of procedure or in violation of principles of natural justice, where no procedure is specified. The High Court may accede to such a challenge and can also non-suit the petitioner on the ground that alternative efficacious remedy is available and that be invoked by the writ petitioner. However, if the writ petitioner choses to approach the Hi....
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....bviously was done on the basis of concession given by the counsel appearing for the Revenue as noted in paragraph 2(1) of the order, which reads thus: "2. The High Court has dismissed the writ petition filed by the petitioner on the ground that there is an adequate alternative remedy by way of an appeal under Section 35 of the Central Excise Act. Learned counsel for the petitioner submits that the petitioner will face certain difficulties in pursuing this remedy: (1) This remedy may not be any longer available to it because the appeal has to be filed within a period of three months from the date of the assessment order and delay can be condoned only to the extent of three more months by the Collector under Section 35 of the Act. It is pointed out that the petitioner did not file an appeal because the Collector (Appeal) at Madras had taken a view in a similar matter that an appeal was not maintainable. That apart, the petitioner in view of the huge demand involved filed a writ petition and so did not file an appeal. In the circumstances of the case, we are of the opinion that the ends of justice will be met if we permit the petitioner to file a belated appeal within one month ....