Dy. Commissioner of Income Tax vs H.V. Shantharam

The petitioner in this petition is the Deputy Commissioner. In this petition, the petitioner has called in question the correctness of the order dated 17-6-2002 passed by the Tribunal in Misc. Petition No. 54 of 2002, a copy of which has been produced as Annexure-H to this petition.

In this petition, Shri Indra Kumar, the learned senior standing counsel appearing for the Income Tax Department challenging the correctness of the impugned order, mainly made three submissions. Firstly, he submitted that the order impugned is liable to be quashed on the ground that the Tribunal had no jurisdiction to pass the impugned order in the purported exercise of power conferred on it under sub-section (2) of section 254 of the Income Tax Act, 1961 (hereinafter referred to as ''the Act). Secondly, he submitted that the said order suffers from errors apparent on the face of the record inasmuch as the said order came to be passed in total disregard of the materials on record. He made several incidental submissions elaborating this submission. Finally, he submitted that since in the order impugned several unwarranted and uncalled for remarks against the petitioner and responsible officers of the department are made, the said remarks are required to be expunged by this court.

However, Shri B.V. Acharya, the learned senior counsel appearing along with Shri E.S. Kiresur, while countering the submissions of Shri Indra Kumar made on merits pointed out that since the petitioner has a right of appeal provided u/s 260A of the Act, against the impugned order, this petition is liable to be rejected by this court on the ground that the petitioner has an alternative remedy provided under the Act. In support of his submissions that the petitioner has a right of appeal, he relied upon the decision of this court in the case of L. Sohanraj v. Dy. CIT (Writ Petition Nos. 40259 to 40262 of 1999, dated 11-4-2000) and also the decision of Division Bench made in Writ Appeal Nos. 3852 to 3855 of 2000 disposed of on 3-8-2000 confirming the order made by the learned Single Judge in the case of L. Sohanraj (supra). Shri Acharya also submitted that the respondent would not raise any objection with regard to the maintainability of the appeal, if the petitioner files an appeal challenging the impugned order.

In the light of the rival contentions advanced, the two questions that emerge for my consideration in this petition are:

"1. Whether the petitioner has a right of appeal against the order impugned to this court u/s 260A of the Act ?

Whether this is a fit case for this court to examine the correctness of the impugned order in exercise of the power conferred on it under articles 226 and 227 of the Constitution, even if the right of appeal is available ?"

Before I proceed to consider the questions that would arise for consideration in this petition, it will be useful to refer to section 260A which reads as follows :

"Appeal to High Court.(1) An appeal shall lie to the High Court from every order passed in appeal by the Appellate Tribunal, if the High Court is satisfied that the case involves a substantial question of law.

(2) The Chief Commissioner or the Commissioner or an assessee aggrieved by any order passed by the Appellate Tribunal may file an appeal to the High Court and such appeal under this sub-section shall be

(a) filed within one hundred and twenty days from the date on which the order appealed against is received by the assessee or the Chief Commissioner or Commissioner;

(b)

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(c) in the form of a memorandum of appeal precisely stating therein the substantial question of law involved.

(3) Where the High Court is satisfied that a substantial question of law is involved in any case, it shall formulate that question.

(4) The appeal shall be heard only on the question so formulated, and the respondents shall, at the hearing of the appeal, be allowed to argue that the case does not involve such question:

Provided that nothing in this sub-section shall be deemed to take away or abridge the power of the court to hear, for reasons to be recorded, the appeal on any other substantial question of law not formulated by it, if it is satisfied that the case involves such question.

(5) The High 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."

Regarding question No. 1 :

Sub-section (1) of section 260A extracted above in unmistakable terms states that an appeal would lie to this court "from every order passed in appeal by the Appellate Tribunal". There is no dispute that the order impugned is passed by the Tribunal. However, the area of controversy is as to whether the impugned order is an order passed in an appeal by the Tribunal; or it has to be treated as an order made by the Tribunal in exercise of its original jurisdiction under sub-section (2) of section 254. It is not in dispute that the impugned order is the result of an application filed by the respondent under sub-section (2) of section 254. In the said application, the respondent has prayed for rectification of the order made in the appeal on the several grounds urged in the application. The said application was allowed and the earlier order made in appeal came to be rectified. However, Shri Indra Kumar would strongly contend that the said order does not amount to an order of rectification or annulment of the order made in the appeal, but it is an order made under sub-section (2) of section 254; and, therefore, it is not an order made in the appeal. Further, it is also his contention that the impugned order being one made without jurisdiction cannot be treated or considered as one made in appeal. To appreciate the said contention of the learned counsel, one has to took into the substance of the order and the proceedings in which the said order was made. If it is so examined, I am of the considered view, the substance of the order impugned in this petition is rectification of the earlier order made in the appeal. This is clear from the prayer made in the application filed under sub-section (2) of section 254 and also the substance of the order made. Whether the Tribunal had the jurisdiction or the power to rectify the earlier order or not is a matter which is required to be considered on merits. However, since the impugned order was made by the Tribunal on an application filed seeking rectification or annulment of the order made in the appeal, the order impugned must be treated as an order made in the appeal. Once it is held that the order impugned came to be made in an appeal, section 260A is attracted and an appeal would lie to this Court. It is necessary to point out that if two views are possible on an interpretation of the provision which provides for a right of appeal, it is always desirable to take the view not to place a restricted meaning to such a provision and take away the right of appeal provided to a party. Such an approach would, in my view, always be in the interest of parties and justice. I am also in my above view, supported by the judgment of this court made in the case of L. Sohanraj (supra). In the said case, the application filed by an assessee under sub-section (2) of section 254 seeking rectification of the order made in an appeal came to be rejected by the Tribunal. Aggrieved by the said order, the assessee filed a petition before this court under articles 226 and 227 of the Constitution challenging the correctness of the said order. The learned Single Judge of this court took the view that a right of appeal is provided to this court against the said order. The Division Bench of this court in writ appeal referred to above, approved the view expressed by the learned Single Judge of this court. For all these reasons, I am unable to accede to the submission of Shri Indra Kumar, and accordingly, the first question is answered.

Regarding question No. 2 :

Now the next question is, if the petitioner has a right of appeal provided against the impugned order before this court, whether this court in the light of the contentions advanced by the learned counsel appearing for the petitioner that the impugned order is one without jurisdiction, should proceed to examine the correctness of the impugned order and if it is held that the impugned order is one made without jurisdiction, whether this court should interfere against the impugned order? It is no doubt true that when an order is made in disregard of the principles of natural justice or the order made is one without jurisdiction, this court could interfere against the said orders in exercise of its powers under articles 226 and 227, even if a right of appeal is provided against such orders. But the question is, when a right of appeal is provided before Division Bench of this court on a substantial question of law where the scope of interference is wider in appeal than the one by this court in exercise of its writ jurisdiction, whether it is appropriate for this court to proceed to examine the correctness of such orders? As noticed by me earlier, in my view, when alternative remedy of right of appeal provided is to this court and that too before a Division Bench of this court, it will be totally inappropriate for this court to exercise its extraordinary jurisdiction under articles 226 and 227. The power of this court under articles 226 and 227 is exercised to set right the injustice done to a party and when generally no remedy is provided to the party under a statute. The scope of examination by this court with regard to the grievance made by the parties against the order passed by the subordinate authorities, Tribunals and courts in exercise of the power under articles 226 and 227 is much narrower and circumscribed by in-built limitations imposed on it than the right of appeal conferred in a statute. Therefore, question No. 2 is also required to be answered against the petitioner. However, the submission of Shri Acharya that the respondent also would not raise any objection with regard to the maintainability of the appeal u/s 260A is placed on record.

In the light of the discussion made above, this petition is liable to be rejected with liberty reserved to the petitioner to file an appeal as provided u/s 260A. However, since the Tribunal has only granted three days time to the petitioner to refund the amount to the respondent and the said order was stayed by this court and notice of the petitioner had already been issued to the respondent, I am of the view that it would be in the interest of justice to stay the said order directing the refund of the amount for a period of four weeks from today. Shri Acharya also submitted that he has no objection to make such an order to be in operation for a period of four weeks. Subject to the time granted to refund the amount, this petition is rejected.