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TMI Blog2022 (7) TMI 1016X X X X Extracts X X X X X X X X Extracts X X X X ..... ining the writ petition as a matter of course without relegating the writ applicant to avail statutory remedy would be in disregard to the legal settled position of law as held by the Supreme Court. Even other wise, entertaining the writ petition beyond the statutory period of limitation would amount to taking a view inconsistent with legislative intent as explicitly provided under Section 260A(2a) of the Act, as the same would render the legislative scheme and intention behind the provisions otiose. Thus, in light of the aforesaid legal position, the petition fails on the count of preliminary objections of maintainability. We are in agreement with the argument advanced by the department that the statutory time period for filing appeal had expired long back in the month of, itself whereas instead of filing application seeking condonation of delay which had occurred in filing statutory appeal, the writ applicant has preferred present writ application without substantiating the plea of inability to file appeal within prescribed period of limitation. In such circumstances, no indulgence could be shown to the writ applicant. However, we make it clear that we have otherwise not gone ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Section 80IB of the Act. Relevant documents in the nature of approved plan, audit report in Form 10CCB, development permission, B.U. permission and development agreement entered into by the writ applicant with one Pravinbhai Ramdas Patel as regards the housing project, were also placed for consideration. 2.2 The Assessing Officer after examining the aforesaid documents vide order dated 24.12.2009 was pleased to disallow the entire claim of the writ applicant under Section 80IB(10) of the Act to the tune of Rs.25,69,952/-. Being aggrieved and dissatisfied with the aforesaid order of the Assessing Officer, the writ applicant had preferred an appeal under Section 246A of the Act before the Commissioner of Income Tax (Appeals) -XV, Ahmedabad. The said appeal was registered as Appeal No.CIT(A)-XV/ITO/9(1)/303/09-10. The Commissioner of Income Tax (Appeals)-XV, Ahmedabad after considering the written submissions of the writ applicant as well as upon perusal of the record ultimately, dismissed the appeal vide order dated 25.01.2011. 2.3 The writ applicant thereafter, preferred the second appeal before the Income Tax Appellate Tribunal, A Bench, Ahmedabad, under Section 253 of t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... dismissing the appeal of the Assessee for nonprosecution whereas the present petition is filed in the year 2021, which suffers from delay and latches. It is further submitted that against the order of ITAT, there is provision of statutory appeal under Section 260A of the Act where the writ applicant is expected to file appeal within the statutory period of limitation before this Court. However, for the reasons best known to the writ applicant, the writ applicant has preferred to invoke extra-ordinary writ jurisdiction of this Court under Article 226 of the Constitution of India. It is also submitted that even otherwise on merits also, the sole ground raised by the writ applicant in the present writ application is fallacious in as much as that the address mentioned by the assessee in the present writ application and that mentioned in the appeal memo before the Appellate Authorities is the same and as reflected from the order impugned, the same can be presumed to be communicated to the writ applicant. Thus, it is submitted that in absence of any sufficient explanation tendered by the writ applicant for the delay which has occurred in challenging the impugned order of the ITAT, the pr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... in the instant case, it was a matter of transfer from Mumbai Bench to the Ahmedabad Bench of these appeals and the present appellant has made out sufficient cause indicating from the material placed on record that it had never abandoned the cause. On the contrary, it had consistently pursued the matters as it was having a direct bearing on the appeals of subsequent years. Even otherwise, what is the requirement of the law is of adjudication on merit even when either side or both the sides choose not to contest. In view of the aforesaid, we are of the considered view that the Tribunal erred in dismissing the appeal only on the ground of non- prosecution without adverting to the merits of the matter and,therefore, we set aside the order impugned dated 4.8.2006 passed by the Tribunal and also remand the matter to the Tribunal to adjudicate the same on merits. Appeal is allowed accordingly. 8. It was therefore, submitted that the Tribunal could not have dismissed the appeal for want of prosecution, without the same being decided on merits. Mr. Dave, the learned counsel appearing for the writ applicant had further submitted that in fact the writ applicant was not aware about the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... cation. In the peculiar facts and circumstances of the case, the limited issue which falls for our considertion is whether this Court in exercise of powers conferred under Article 226 of the Constitution of India can entertain the writ petition more particularly, when the efficacious statutory remedy of appeal provided under Section 260A of the Act is barred by law of limitation? 11. It would be appropriate to consider the relevant provision of law more particularly, Section 260A of the Income Tax Act. Section 260A of the Income Tax Act, reads thus: Appeal to High Court. (1) An appeal shall lie to the High Court from every order passed in appeal by the Appellate Tribunal before the date of establishment of the National Tax Tribunal, if the High Court is satisfied that the case involves a substantial question of law. (2) The Principal Chief Commissioner or Chief Commissioner or the Principal Commissioner or Commissioner or an assessee aggrieved by any order passed by the Appellate Tribunal may file an appeal to the High Court and such appeal under this sub-section shall be- (a) filed within one hundred and twenty days from the date on which the order appe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tatutory provision itself makes it clear that the appeal shall be filed within 120 days from the date on which the order appeal against is received by the assessee. Thus, the receipt of certified copy of the order of the Tribunal would trigger the commencement of limitation period under Section 260A(2)(a) of the Act. The further analysis of the aforesaid provision confers powers upon High Court to admit an appeal after the expiry of period of 120 days. Undoubtedly, the Income Tax Act being a Special Act expressly provides in Section 260A the special period of limitation as the legislature intended to be a complete Code by itself, which alone should govern the matters pertaining to the special statute. Thus, the scheme of the Act is suggestive of the fact that the time limit is prescribed under Section 260A of the Act to file an appeal before the High Court and the limitation can be extended by the Court by invoking the provisions of Section 5 of the Limitation Act, 1963. 13. At this juncture, it would also be necessary to look into the expression received by the assessee . If there is delay in filing an appeal to the High Court under Section 260A, the reasons offered has to be ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... after considering various decisions, concluded at para 38 as under: 38. Such like matters frequently arise before the High Courts. We sum up our conclusions in a nutshell, even at the risk of repetition and state the same as hereunder :- (1) Amendment by Act No.46 of 1999 with effect from 01.07.2002 in Section 115 of Code of Civil Procedure cannot and does not affect in any manner the jurisdiction of the High Court under Articles 226 and 227 of the Constitution. (2) Interlocutory orders, passed by the courts subordinate to the High Court, against which remedy of revision has been excluded by the CPC Amendment Act No. 46 of 1999 are nevertheless open to challenge in, and continue to be subject to, certiorari and supervisory jurisdiction of the High Court. (3) Certiorari, under Article 226 of the Constitution, is issued for correcting gross errors of jurisdiction, i.e., when a subordinate court is found to have acted (i) without jurisdiction - by assuming jurisdiction where there exists none, or (ii) in excess of its jurisdiction by overstepping or crossing the limits of jurisdiction, or (iii) acting in flagrant disregard of law or the rules of procedure ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on 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. (8) The High Court in exercise of certiorari or supervisory jurisdiction will not covert itself into a Court of Appeal and indulge in re-appreciation or evaluation of evidence or correct errors in drawing inferences or correct errors of mere formal or technical character. (9) In practice, the parameters for exercising jurisdiction to issue a writ of certiorari and those calling for exercise of supervisory jurisdiction are almost similar and the width of jurisdiction exercised by the High Courts in India unlike English courts has almost obliterated the distinction between the two jurisdictions. While exercising jurisdiction to issue a writ of certiorari the High Court may annul or set aside the act, order or proceedings of the subordinate courts but cannot substitute its own decision in place thereof. In exercise of supervisory jurisdiction the High Court may not only give suitable directions so as to guide the subordinate court as to the manner in which it would act or proceed thereafter or afresh, the High Court may in app ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... urisdiction of the High Court under Section 115 of the Code of Civil Procedure does not take away and could not have taken away the constitutional jurisdiction of the High Court. But it was also further held that the power exists, untrammelled by the amendment in Section 115 and is available to be exercised subject to rules of self-discipline and practice which are as well settled. 25. Recently, the decision of the Apex Court in the case of Surya Dev Rai (supra) as was referred to the Larger Bench, on the point as to whether the order of the Civil Court was amenable to the writ jurisdiction under Article 226 of the Constitution or not, and the Larger Bench of the Apex Court in the case of Radhey Shyam Anr. Vs. Chhabi Nath Ors. in Civil Appeal No.2548/09 vide its decision dated 26.02.2015, overruled the decision of the Apex Court in the case of Surya Dev Rai (supra), but only the to the extent that the judicial orders of the Civil Court are not amenable to the writ jurisdiction under Article 226 of the Constitution and it was held that the jurisdiction under Article 227 of the Constitution is distinct from the jurisdiction under Article 226 of the Constitution. However, th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e done directly as per the statute can not be permitted to be done indirectly in writ jurisdiction unless a grave and strong case is made out before the High Court that noninterference to the order under challenge would result into a gross injustice to the party suffering the order. 28. In the decision of the Apex Court in the case of Singh Enterprises v. Commissioner of Central Excise, Jamshedpur reported at 2008 221 ELT 163 (SC), which has been relied upon by the learned counsel Mr. Parikh, the Apex Court was considering the scope and ambit of sufficient cause found in the various statutes and thereby to consider to give the effect of the statutory provision made for limitation. In the said case, the question as to whether the provisions of section 35 of the Act affects the jurisdiction of the High Court under Article 226 of the Constitution for exercise of the constitutional power or not was not considered by the Apex Court. Therefore, the contention of the learned counsel Mr.Parikh that the decision of the High Court taking the view that it had no power to condone the delay after the expiry of the period of 30 days should mean that the High Court will have no jurisdiction ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... lowing circumstances that A.1) The authority has passed the order without jurisdiction and by assuming jurisdiction which there exist none, or A.2) Has exercised the power in excess of the jurisdiction and by overstepping or crossing the limits of jurisdiction, or A.3) Has acted in flagrant disregard to law or rules or procedure or acted in violation of principles of natural justice where no procedure is specified. B) Resultantly, there is failure of justice or it has resulted into gross injustice. We may also sum up by saying that the power is there even in aforesaid circumstances, but the exercise is discretionary which will be governed solely by the dictates of the judicial conscience enriched by judicial experience and practical wisdom of the judge. 17. The aforesaid decision of the larger bench came up for consideration before the Supreme Court of India in the case of Assistant Commissioner (CT) LTU, Kakinada Ors. vs. M/s. Glaxo Smith Kline Consumer Health Care Limited reported in AIR 2020 SC 2819. The Supreme Court in the backdrop of the facts in the said matter, examined the question as to w hether the High Court in exercise of its w ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... y provided in the Articles. But the exercise of the jurisdiction is discretionary: it is not exercised merely because it is lawful to do so. The very amplitude of the jurisdiction demands that it will ordinarily be exercised subject to certain self-imposed limitations. Resort that jurisdiction is not intended as an alternative remedy for relief which may be obtained in a suit or other mode prescribed by statute. Ordinarily the Court will not entertain a petition for a writ under Article 226, where the petitioner has an alternative remedy, which without being unduly onerous, provides an equally efficacious remedy. Again the High Court does not generally enter upon a determination of questions which demand an elaborate examination of evidence to establish the right to enforce which the writ is claimed. The High Court does not therefore act as a court of appeal against the decision of a court or tribunal, to correct errors of fact, and does not by assuming jurisdiction under Article 226 trench upon an alternative remedy provided by statute for obtaining relief. Where it is open to the aggrieved petitioner to move another tribunal, or even itself in another jurisdiction for obtaining r ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n Neville v. London Express Newspapers Ltd. (1919 AC 368) and has been reaffirmed by the Privy Council in Attorney-General of Trinidad and Tobago v. Gordon Grant Co. Ltd. (1935 AC 532) and Secretary of State v. Mask Co. (AIR 1940 PC 105). It has also been held to be equally applicable to enforcement of rights, and has been followed by this Court throughout. The High Court was therefore justified in dismissing the writ petitions in limine. In the subsequent decision in Mafatlal Industries Ltd. Ors. vs. Union of India Ors.12, this Court went on to observe that an Act cannot bar and curtail remedy under Article 226 or 32 of the Constitution. The Court, however, added a word of caution and expounded that the constitutional Court would certainly take note of the legislative intent manifested in the provisions of the Act and would exercise its jurisdiction consistent with the provisions of the enactment. To put it differently, the fact that the High Court has wide jurisdiction under Article 226 of the Constitution, does not mean that it can disregard the substantive provisions of a statute and pass orders which can be settled only through a mechanism prescribed by the statu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... considered and plainly rejected in the following words: 12. In A.R. Antulay v. R.S. Nayak, (1988) 2 SCC 602, while explicating and elaborating the principles under Article 142, Sabyasachi Mukharji, J. (as his Lordship then was) opined thus: (SCC p. 656, para 50) 50. The fact that the rule was discretionary did not alter the position. Though Article 142(1) empowers the Supreme Court to pass any order to do complete justice between the parties, the 16 (2010) 5 SCC 23 17 (2016) 16 SCC 152 court cannot make an order inconsistent with the fundamental rights guaranteed by Part III of the Constitution. No question of inconsistency between Article 142(1) and Article 32 arose. Gajendragadkar, J., speaking [Prem Chand Garg v. Excise Commr., AIR 1963 SC 996] for the majority of the Judges of this Court said that Article 142(1) did not confer any power on this Court to contravene the provisions of Article 32 of the Constitution. Nor did Article 145 confer power upon this Court to make rules, empowering it to contravene the provisions of the fundamental right. At AIR pp. 1002-03, para 12 : SCR p. 899 of the Report, Gajendragadkar, J., reiterated that the powers of this Court ar ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... stice, where no procedure is specified. The High Court may accede to such a challenge and can also non-suit the petitioner on the ground that alternative efficacious remedy is available and that be invoked by the writ petitioner. However, if the writ petitioner choses to approach the High Court after expiry of the maximum limitation period of 60 days prescribed under Section 31 of the 2005 Act, the High Court cannot disregard the statutory period for redressal of the grievance and entertain the writ petition of such a party as a matter of course. Doing so would be in the teeth of the principle underlying the dictum of a three-Judge Bench of this Court in Oil and Natural Gas Corporation Limited (supra). In other words, the fact that the High Court has wide powers, does not mean that it would issue a writ which may be inconsistent with the legislative intent regarding the dispensation explicitly prescribed under Section 31 of the 2005 Act. That would render the legislative scheme and intention behind the stated provision otiose. 16. The respondent had relied on the decision of this Court in K.S. Rashid Son vs. the Income Tax Investigation Commission. This decision of the Cons ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s not maintainable. That apart, the petitioner in view of the huge demand involved filed a writ petition and so did not file an appeal. In the circumstances of the case, we are of the opinion that the ends of justice will be met if we permit the petitioner to file a belated appeal within one month from today with an application for condonation of delay, whereon the appeal may be entertained. Learned counsel for the Revenue has stated before us that the Revenue will not object to the entertainment of the appeal on the ground that it is barred by time. In view of this direction and concession, the petitioner will have an effective alternative remedy by way of an appeal. In that case, it appears that the writ petition was filed within statutory period and legal remedy was being pursued in good faith by the assessee (appellant). 18. Thus, in view of the aforesaid legal position, this Court finds that the decision of the larger Bench of this Court in the case of Panoli Intermediate (India) Pvt. Ltd. (Supra) is the decision which the Supreme Court found it to have been decided on fallacious premises. In other words, the Supreme Court has held that once an efficacious alte ..... X X X X Extracts X X X X X X X X Extracts X X X X
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