AI Drafter 
TaxTMI 
TaxTMI 
2022 (7) TMI 1016
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....A No.874/AHD/2011, on its own merits after considering 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 und....
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....e 24 of the Income Tax Rules, 1963 which 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 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 ....
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....t in Rule in the Income-Tax Appellate Tribunal Rules was made as yet. Rule 24 of the Income Tax Rules, 1963 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 t....
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....n order to redress grievance of the writ applicant. 9. Once again by emphasizing on the fact with regard to violation 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 t....
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....h Court shall decide the question of law so formulated and deliver such judgment thereon containing the grounds on which such decision is founded and may award such cost as it deems fit. (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 eve....
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..... The larger Bench of this Court after taking into consideration the various decisions of the Hon'ble Apex Court on the issue on hand observed as under: "22. In order to appreciate the contentions raised by the respective 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....
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....A patent error is an error which is selfevident, i.e., which can be perceived or demonstrated without involving into any lengthy or complicated argument or a long drawn process of reasoning. Where two inferences are reasonably possible and the subordinate court has chosen 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 e....
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....ases where 'a stitch in time would save nine'. At the end, we may sum up by saying that the power is there but the exercise is discretionary which will be governed solely by the dictates of judicial conscience enriched by judicial experience and practical wisdom of the Judge." 23. The 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 e....
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.... justice. But the jurisdiction of writ of certiorari should not be converted into the court of appeal or indulge into re-appreciation of the evidence or evaluation of the evidence or correction of the errors were two views are possible. The High Court while exercising the jurisdiction of writ of certiorari may annul 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 circumstance....
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....efore, we do not find that the said decisions are of any help to Mr.Parikh. At the same time, there is considerable force in the contention of Mr.Parikh that even while exercising the power under Article 226 of the Constitution, the High Court would normally go by the statutory provision. But such contention can be accepted in normal 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 ....
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.... Zila Parishad now Zila Parishad, Muzaffarnagar8 and also Nivedita Sharma vs. Cellular Operators Association of India & Ors.9). In Thansingh Nathmal & Ors. vs. Superintendent of Taxes, Dhubri & Ors.10, the Constitution Bench of this Court made it amply clear that although the power of the High Court under Article 226 of the Constitution is very wide, the Court must exercise self-imposed restraint and 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 ....
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....her appeal to the Tribunal under sub-section (3) of Section 23 of the Act, and then ask for a case to be stated upon a question of law for the opinion of the High Court under Section 24 of the Act. The Act provides for a complete machinery to challenge an order of assessment, and the impugned orders of assessment can only be challenged by the mode prescribed by the Act and not by a petition under Article 226 of the Constitution. 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 cas....
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....bly, while admitting the appeal, the Court had condoned the delay in filing the appeal. However, at the final hearing of the appeal, an objection regarding appeal being barred by limitation was allowed to be raised being a jurisdictional issue and while dealing with the said objection, the Court referred to the decisions in Singh Enterprises vs. Commissioner of Central Excise, Jamshedpur & Ors., Commissioner of Customs and Central Excise vs. 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 c....
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.... Article 226 of the Constitution. The principle underlying the rejection of such argument by this Court would apply on all fours to the exercise of power by the High Court under Article 226 of the Constitution. 15. We may now revert to the Full Bench decision of the Andhra Pradesh High Court in Electronics Corporation of India Ltd. (supra), which had adopted the view taken by the Full Bench of the Gujarat High Court in Panoli Intermediate (India) Pvt. Ltd. vs. Union 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 pass....
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....of the Central Excise Act. Concededly, this Court was pleased to uphold that opinion of the High Court. However, whilst considering the difficulty expressed by the petitioner therein that the statutory remedy of appeal had now become time barred during the pendency of the proceedings before the High Court and before this Court, the Court permitted the petitioner therein to resort to remedy of statutory appeal and directed the appellate authority to decide the appeal on merits. This obviously 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 b....