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Judgment
Heard Sri S.K. Garg, assisted by Sri Rahul Shukla, Counsel for the petitioner and Sri D.D. Chopra, senior standing Counsel for the respondents.
The petitioner being aggrieved by the order dt. 25th July, 2008 passed by the respondent No. 1 has filed the instant writ petition. The brief facts of the case are that the petitioner being aggrieved by the judgment and order dt. 25th Aug., 2004 with respect to the asst. yr. 2000-01 passed by the Tribunal filed an appeal u/s 260A of the IT Act (hereinafter referred to as the "Act"). After hearing the learned Counsel for the parties this Court by the judgment and order dt. 22nd May, 2008 remanded the matter to Tribunal, Lucknow Bench, Lucknow, to decide on the basis of the material on record. By the impugned order dt. 25th July, 2008, the learned Tribunal, Lucknow Bench, Lucknow has directed the AO to record the statement of Sri Dinesh Singh, ACA and to find out whether he has been representing before the Department in his individual capacity or as a partner of M/s Sachdeva & Co. The Tribunal by the impugned order has further directed the assessing authority to summon Sri G.K. Lath, chartered accountant, and record his statement as to in what capacity he has received the notice u/s 143(2) and whether he has misled the notice processor by stating that he is authorised to receive notices on behalf of the assessee.
The learned Counsel for the petitioner submits that by the judgment and order dt. 22nd May, 2008 a direction was issued by this Hon''ble Court to the Tribunal, Lucknow Bench, Lucknow to decide the matter on the basis of the material on record and the Tribunal was not directed to hold a fresh enquiry into the matter and by the impugned order dt. 25th July, 2008 the learned Tribunal has directed the AO to hold a fresh enquiry regarding the service of notice upon Sri G.K. Lath, chartered accountant.
The learned Counsel for the petitioner has relied upon the decisions of Hon''ble Supreme Court In the cases of Assistant Collector of Central Excise, Chandan Nagar, West Bengal Vs. Dunlop India Ltd. and Others, Tirupati Balaji Developers Pvt. Ltd. and Others Vs. State of Bihar and Others, , The Bhopal Sugar Industries Ltd. Vs. The Income Tax Officer, Bhopal, , Dharam Chand Jain Vs. The State of Bihar, and CIT v. Ralson Industries Ltd. (2007) 207 CTR 201 : (2007) 2 SCC 326.
Sri D.D. Chopra, learned senior standing Counsel appearing on behalf of the opposite parties submits that if the petitioner is aggrieved by the impugned order dt. 25th July, 2008 he has a remedy u/s 254(2) of the IT Act before the Tribunal itself and the writ petition is not maintainable. He further submits that there is no illegality in the impugned order passed by the Tribunal, Lucknow by which a direction has been issued to the AO to ascertain whether the notice was served upon Sri G.K. Lath or not in accordance with the provisions of the Act. He further submits that by the judgment and order dt. 22nd May, 2008 passed by this Hon''ble Court the Tribunal was directed for fresh adjudication in the matter and as such there is no illegality in the impugned order dt. 25th July, 2008 passed by the Tribunal, Lucknow Bench, Lucknow.
We have considered the submissions made by the learned Counsel for the parties and gone through the record.
Being aggrieved by the judgment and order dt. 25th Aug., 2004 for the asst. yr. 2000-01 passed by the Tribunal, an appeal was preferred by the petitioner in this Court which was registered as IT Appeal No. 1 of 2005. The said appeal was contested by the respondents and thereafter by the detailed judgment and order dt. 22nd May, 2008, the matter was remitted back to the Tribunal, Lucknow Bench, Lucknow for fresh adjudication on the basis of the material on record. By the interlocutory order dt. 25th July, 2008, the Tribunal has directed the AO to record the statements of Sri Dinesh Singh, ACA and Sri G.K. Lath, chartered accountant to ascertain whether Sri Dinesh Singh is representing before the Department in his individual capacity or as a partner of M/s Sachdeva & Co., and in what capacity Sri G.K. Lath received the notice u/s 143(2) of the Act. According to the petitioner, it was not permissible for the Tribunal to receive fresh evidence in the matter. Hon''ble the Supreme Court in the case of Tirupati Balqji Developers (P) Ltd. and Ors. v. State of Bihar and Ors. (supra) has held as under:
Under the constitutional scheme as framed for the judiciary, the Supreme Court and the High Courts both are Courts of Record. The High Court is not a Court ''subordinate'' to the Supreme Court. In a way the canvass of judicial powers vesting in the High Court is wider inasmuch as it has jurisdiction to issue all prerogative writs conferred by Article 226 of the Constitution for the enforcement of any of the rights conferred by Part III of the Constitution and for any other purpose while the original jurisdiction of Supreme Court to issue prerogative writs remains confined to the enforcement of fundamental rights and to deal with some such matters, such as presidential election or inter State disputes which the Constitution does not envisage being heard and determined by High Courts. The High Court exercises power of superintendence under Article 227 of the Constitution over all subordinate Courts and Tribunals....
...The superior forum shall have jurisdiction to reverse, confirm annul or modify the decree or order of the forum appealed against and in the event of a remand the lower forum shall have to re-hear the matter and comply with such directions as may accompany the order of remand. The appellate jurisdiction inherently carries with it a power to issue corrective directions binding on the forum below and failure on the part of latter to carry out such directions or show disrespect to or to question the propriety of such directions would-it is obvious-be destructive of the hierarchical system in administration of justice. The seekers of justice and the society would lose faith in both.
Hon''ble the Supreme Court in the case of CIT v. Ralson Industries Ltd. (supra) has held that when an order is passed by a higher authority, the lower authority is bound thereby keeping in view the principles of judicial discipline.
We are of the view that it was not open for the Tribunal to take fresh material on record by the impugned order dt. 25th July, 2008. The Tribunal has directed the assessing authority to record the statements of Sri Dinesh Singh, ACA and Sri G.K. Lath, chartered accountant, which will amount additional evidence/material in the case. By the judgment and order passed by this Court, the Tribunal was directed to adjudicate the matter fresh on the basis of the material on record. When a direction is issued to an authority or Tribunal to do a certain thing in a certain manner, the thing must be done in that manner and in no other manner. In the case of AIR 1936 253 (Privy Council) the Privy Council has held that where a power is given to do a certain thing in a certain way the thing must be done in that way or not at all. Other methods of performance are necessarily forbidden. In the instant case, the matter was remitted to the Tribunal by this Court with certain directions and it was not open for the Tribunal to take fresh evidence in the matter as no such direction was issued by this Court. The impugned order by which a fresh direction has been issued by the Tribunal to the AO is legally not sustainable.
In the result, the writ petition succeeds and is hereby allowed. The impugned interim order dt. 25th July, 2008, a copy of which has been annexed as Annex.-8 to the writ petition is hereby quashed. The Tribunal shall decide the matter, in accordance with the direction contained in the judgment and order dt. 22nd May, 2008 at the earliest.