9911796707
TMI Blog2002 (7) TMI 24X X X X Extracts X X X X X X X X Extracts X X X X ..... Tribunals and courts in exercise of the power under articles 226 and 227 of the Constitution of India is much narrower and circumscribed by in-built limitations imposed on it than the right of appeal conferred in a statute. So question No. 2 is also required to be answered against the petitioner. X X X X Extracts X X X X X X X X Extracts X X X X ..... in the case of L. Sohanraj v. Dy. CIT [2003] 260 ITR 147 made in Writ Petitions Nos. 40259 to 40262 of 1999, disposed of on April 11, 2000, and also the decision of the Division Bench of L. Sohanraj v. Dy. CIT [2003] 260 ITR 155 made in Writ Appeals Nos. 3852 to 3855 of 2000 disposed of on August 3, 2000, confirming the order made by the learned single judge in the case of L. Sohanraj [2003] 260 ITR 147. 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: "(i) Whether the petitio ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ve 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) ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... o 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 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 of the Act 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 the merit ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... o. 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 under section 260A of the Act 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 under section 260A of the Act. However, since the Appellate 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 petition had already been issued to the respondent, I am of the view that it would be in the interest of justice to stay ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
