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TMI Blog2009 (1) TMI 320X X X X Extracts X X X X X X X X Extracts X X X X ..... 100. The assessee's appeal stood partly allowed by the learned CIT(A) Central, Jaipur vide his order dt. 11th Sept., 2006. The parties in their respective appeals carried the dispute before the Jodhpur Bench of the Tribunal on the additions sustained as well as deleted by the learned CIT(A). The assessee also challenged the validity of action under s. 132 of the Act through ground No. 1 (a) on the following terms: "Ground No. 1(a) The conversion of survey into search without fulfilling the preconditions prescribed in s. 132 prove the apparent invalidity of search and consequently all further proceedings including the impugned assessment order is null and void." The Tribunal vide its order dt. 25th Oct., 2007 passed in IT(SS)A No. 55/Jd/ ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... in s. 132(1) of the Act. The High Court also expressed the view that the Tribunal is competent to look into whether there at all existed any material to have reason to believe, as the absence would vitiate the entire action. 5. The statutory remedy to appeal to the Tribunal against the order of the learned CIT(A) is contained under s. 253 of the Act. Since sub-s. (1) of s. 253 of the Act has used the word 'any', the assessee would be in his right to challenge any of such orders giving rise from the cause of actions and arising out of material on record that emerges from the filing of return to the completion of assessment. Even though no specific provision for filing of appeal against action initiated under s. 132 of the Act has been prov ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... al, without jurisdiction and to quash the impugned search warrant under s. 132 or notice, orders, etc., made pursuant thereto. The said writ petition has been admitted and a notice thereon has also been issued by the High Court. The Hon'ble High Court is thus seized with the matter. The assessee's counsel Shri D.C. Jain, when confronted with the aforesaid position, fairly admits that the writ challenging the aforesaid action stands admitted by the Hon'ble High Court of judicature of Rajasthan at Jodhpur but final orders thereon have not yet been made. 7. Since the writ remedy is a 'rule of abundant caution' and not 'rule of law', Writ Court can, in an appropriate case, exercise its jurisdiction to do substantive justice even though altern ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... struct the smooth flow and/or early disposal of the suit or proceedings. The High Court may feel inclined to intervene where the error is such, as if not corrected at that very moment, may become incapable of correction at a later stage and refusal to intervene would result in travesty of justice or where such refusal itself would result in prolonging of the lis. Though we have tried to lay down broad principles and working rules, the fact remains that the parameters for exercise of jurisdiction under Art. 226 or 227 of the Constitution cannot be tied down in a straitjacket formula or rigid rules. Not less than often, the High Court would be faced with dilemma. If it intervenes in pending proceedings there is bound to be delay in terminat ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... why the statutory remedy available was not efficacious, it would not be proper for this Court to consider the question again, When the High Court had entertained a writ petition notwithstanding existence of an alternative remedy, this Court while dealing with the matter in an appeal should not permit the question to be raised unless the High Court's reasoning for entertaining the writ petition is found to be palpably unsound and irrational. Similar view was expressed by this Court in ITO vs. Short Brothers (P) Ltd. and State of UP vs. Indian Hume Pipe Co. Ltd. That being the position, we do not consider the High Court's judgment to be vulnerable on the ground that alternative remedy was not availed. There are two well recognized exceptions ..... X X X X Extracts X X X X X X X X Extracts X X X X
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