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TMI Blog1999 (2) TMI 53X X X X Extracts X X X X X X X X Extracts X X X X ..... be dismissed. He has submitted that it is not a case of granting or refusing an interim order, but a case deserving dismissal in limine. The arguments of the parties, therefore, have to be considered in some detail. Dr. Pal placed the impugned notice (page 69 of the writ petition) and drew my attention to the terms of section 263. That section need not be set out, as it is easily available. He submitted that the power to revise is based upon two conditions precedent and those are that the Commissioner must be satisfied that the assessment order is erroneous and that it is also prejudicial to the interests of the Revenue. Dr. Pal submitted that there are cases showing that the writ court can interfere even at the preliminary stage whe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t the existence of any possible nexus between the borrowed fund and the interest-free advances. Thus, he invoked his jurisdiction under section 263. On the facts as apparent from the notice itself, it is impossible to opine in any view of the matter that the Commissioner did not apply his own mind or exercise his own jurisdiction. Dr. Pal then gave me the case of B. K. Roy P. Ltd. v. CIT [1995] 211 ITR 500 (Cal). From the passage placed by him, which appears at page 505, it appears that the court opined that the existence of an alternative remedy in a case like the one before the court was meaningless, because the Commissioner, even if allowed to exercise his jurisdiction, would be bound by a judgment of the Allahabad High Court ; wheth ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ndia Ltd. v. CIT [1996] 222 ITR 540. The Division Bench there opined that the assessee had an adequate alternative remedy to the notice issued under section 263 because the assessee could reply thereto and have his case heard out by the Commissioner. Mr. Agarwal also submitted that where disputed questions of fact were involved like the existence of nexus between the lenders to the company and the borrowers from the company, a writ would not be an adequate or proper remedy. He emphasized that in this case also the assessee can and should reply to the notice which is impugned here. The records show that the first date of hearing before the Commissioner was on January 11, 1999, which, Dr. Pal informs me, has been adjourned at the instance ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ted the cases to be similarly circumstanced. The Supreme Court has seen it fit to admit an appeal by way of a special leave from the Indo-Asahi order and has also been pleased to grant appropriate interim orders in aid of such appeal. Dr. Pal gave me copies of the Supreme Court order passed on March 17, 1997 in SLP (Civil) No. (S) 859 of 1997. Dr. Pal, therefore, submitted that the mere existence of an alternative remedy by way of making representations to the Commissioner against the impugned notice is not enough to throw out the writ in limine or even refuse to pass interim orders. In so far as this last submission of Dr. Pal is concerned, with due respect to all concerned, and in view of Calcutta Discount Co. Ltd.'s case [1961] 41 IT ..... X X X X Extracts X X X X X X X X Extracts X X X X
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