2023 (1) TMI 492 - HC - Income Tax

Rectification of mistake u/s 154 - Income of the petitioner has to be treated under the head income from the house property - HELD THAT - It is stated that the ground inter-alia which was highlighted in the rectification application was whether the notional income could at all be brought under the head income from other sources which was the primary issue to be considered by the Tribunal having not considered so despite there being a ground raised in that regard in appeal. Reliance was placed upon a judgment in Raj Kumar Shivhare 2010 (4) TMI 432 - SUPREME COURT to highlight the point that where a statutory remedy was available before the High Court, it would not be appropriate to exercise writ jurisdiction when the remedy of appeal before the High Court could not be said to be the remedy which was not equally efficacious. We do not dispute the proposition of law as is sought to be propounded by Mr.Kumar, that in the light of the existence of an alternate remedy, the writ jurisdiction ought not to be exercised. It is equally settled that when an order is passed without jurisdiction, it may not be necessary to relegate the petitioner to the remedy of appeal. In the present case, the petitioner has made out a prima-facie case for interference inasmuch as we are of the opinion that the Tribunal, by virtue of its order has in fact reviewed its earlier in which it was specifically ordered that the income of the petitioner be treated as income from other sources . The consequence of the rectification application filed by the petitioner being allowed was only to the extent that the issue regarding taxability of a notional income had to be considered.

Summary

Issues:
1. Assessment of income under 'income from other sources'
2. Rectification application under section 254(2) of the Income Tax Act, 1961
3. Review of Tribunal's order and jurisdiction of High Court
4. Applicability of writ jurisdiction versus statutory appeal remedy

Analysis:

1. The petitioner filed a return of income for the assessment year 2004-05, and the Assessing Officer assessed the income as 'income from other sources' based on previous orders. The Tribunal directed a re-computation of income. Two applications under section 254(2) of the Act were filed - one by the petitioner and the other by the revenue, highlighting issues regarding the taxability of notional income under 'income from other sources'.

2. The Tribunal allowed both applications, recalled the order, and re-fixed the matters for fresh orders. A writ petition was filed against the Tribunal's order, where the High Court held that the Tribunal reviewing its previous order was impermissible and set aside the order allowing rectification by the revenue.

3. Subsequently, the Tribunal passed a new order treating the income as 'income from house property', which the petitioner challenged. The High Court acknowledged the alternate remedy of appeal but noted that when an order is passed without jurisdiction, the writ jurisdiction can be exercised. The High Court found that the Tribunal had reviewed its earlier order improperly and stayed the operation of the new order for further consideration.

4. The High Court recognized the need for final disposal of the petition and directed listing for a later date. The Court balanced the principles of statutory appeal remedies and the jurisdiction to intervene in cases of orders passed without jurisdiction, ensuring a fair consideration of the petitioner's case.