2005 (6) TMI 23 - HC - Income Tax

Alternative remedy - When the efficacious remedy of statutory appeal and then further statutory appeal is provided and the same can be availed of then, in that event, the writ court should not exercise its extraordinary discretion in entertaining the writ for challenging the impugned order passed by the Commissioner under section 263 of the Act - What this court in writ cannot decide, the appellate court can always decide. It is for the reason that the jurisdiction of appellate court under section 253(1)(c) ibid is quite large and wide whereas, the writ court cannot examine the facts like an appellate court. Even the question of merger cannot be decided in isolation but needs to be decided on the facts

Summary

Issues:
1. Jurisdiction of the High Court to entertain a writ petition challenging an order passed by the Commissioner under section 263 of the Income-tax Act, 1961.
2. Applicability of the decision in Whirlpool Corporation v. Registrar of Trade Marks, AIR 1999 SC 22, to the present case.

Analysis:
1. The judgment by Judge A. M. Sapre addresses the issue of the High Court's jurisdiction to entertain a writ petition challenging an order passed by the Commissioner under section 263 of the Income-tax Act, 1961. The judge opines that the proper remedy for the petitioner lies in filing an appeal to the Income-tax Appellate Tribunal under section 253(1)(c) of the Act against the impugned order. The judge emphasizes that the impugned order is appealable, and it is in the best interest of all parties that the Tribunal first decides the appeal under section 254 of the Act. The judge highlights the significance of allowing the appellate court to examine the facts and legal issues in detail, especially in a case involving substantial amounts of cash and valuables recovered during a CBI raid. The judgment underscores that the writ court should refrain from entertaining the writ petition when statutory appeal remedies are available and can adequately address the issues raised.

2. The judgment also delves into the applicability of the decision in Whirlpool Corporation v. Registrar of Trade Marks, AIR 1999 SC 22, as contended by the petitioner. The judge notes that the petitioner's argument regarding the impugned order being without jurisdiction can be raised in the appeal process along with other issues. The judge emphasizes that the appellate court has broader jurisdiction under section 253(1)(c) of the Act compared to the writ court, which cannot examine facts like an appellate court. The judge points out that the question of merger, as raised by the petitioner, needs to be decided based on facts and cannot be isolated from the overall context of the case. Consequently, the judge concludes that the decision cited by the petitioner may not be directly applicable to the facts of the present case.

In conclusion, the judgment dismisses the petition but grants liberty to the petitioner to file an appeal before the Tribunal within 15 days against the impugned order. The judgment underscores the importance of following the statutory appeal process and allowing the appellate court to thoroughly examine the facts and legal issues involved in the case.