9911796707
TMI Blog1986 (1) TMI 68X X X X Extracts X X X X X X X X Extracts X X X X ..... ment under section 144 of the Act. The Revenue deficit claimed by the assessee was disallowed to the extent of Rs. 1,25,000. The business loss was assessed at Rs. 33,680 of which 40% was allowed. Taking into account income from other sources, tax was charged on income computed at Rs. 65,442. The appellant made an application under section 146 of the Incometax Act, 1961, for setting aside of the said ex parte assessment order which was rejected by the Income-tax Officer. The appellant thereafter filed two appeals. One was from the order of assessment and the other was from the order rejecting the application under section 146. The appeals were disposed of by the Appellate Assistant Commissioner respectively on January 22 and January 18 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t in the nature of mandamus should not be issued directing them to cancel or withdraw or rescind the said assessment order passed by the Income-tax Officer and the appellate orders confirming the same by the Appellate Assistant Commissioner and the Incometax Appellate Tribunal and directing the said respondents further to act according to law. The rule was limited to the following grounds: (i) There was claim before the Tribunal for agricultural development allowance under section 35C of the Act and for tax credit on export gales under section 280ZC of the Act, but the Tribunal did not attempt to gather materials for the allowances; it does not appear that the Tribunal did apply its mind to the records; (ii) Secondly, rule 8 of the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... her held that the appellate authorities, viz., the Appellate Assistant Commissioner and the Tribunal in refusing to set aside the assessment proceeded on the basis of some material and thus acted within jurisdiction and it was not for this court to interfere with such finding in proceedings under article 226 of the Constitution. It was held that the Income-tax Act was a complete code in itself and the appellant should not be allowed to abandon the remedies provided in the Income-tax Act and it was held to be not entitled to relief under the constitutional writ jurisdiction. The application was dismissed and the rule nisi was discharged. The present appeal is from the said judgment and order dated December 14, 1977. Learned advocate for t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... revisional jurisdiction on this court, and if the law is valid and the decision with jurisdiction, the protection of article 265 is not destroyed. There is only one exception to this....... That exception also bears upon jurisdiction where by a misconstruction, the State officer or a quasi-judicial tribunal embarks upon an action wholly outside the pale of the law he is enforcing. If, in those circumstances, his action constitutes a breach of fundamental rights, then a petition under article 32 may lie. " (at p. 1668). (b) Bhopal Sugar Industries Ltd. v. D. P. Dube, Sales Tax Officer, AIR 1967 SC 549 at p. 552; [1963] 14 STC 410 at P. 414 (SC). This decision was cited for the following observations (p. 552): "The High Court has undou ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... defect can be remedied only by legislation and not by judicial interpretation." We have noted earlier that the rule nisi was issued on two limited grounds which have been quoted earlier. Therefore, the appellant would fail or succeed on those grounds only. The provision for allowance under sections 35C and 280ZC were not mooted before the Appellate Assistant Commissioner and did not arise from the order of the latter. The Tribunal refused to consider the same on that ground. The misapplication of rule 8 was not even argued before the Tribunal and has been taken for the first time in these proceedings. In that view of the matter, it cannot be said that the Tribunal in whose order the orders of the Income-tax Officer and the Appellate As ..... X X X X Extracts X X X X X X X X Extracts X X X X
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