9911796707
TMI Blog2023 (1) TMI 492X X X X Extracts X X X X X X X X Extracts X X X X ..... ppeal. Reliance was placed upon a judgment in Raj Kumar Shivhare 2010 (4) TMI 432 - SUPREME COURT to highlight the point that where a statutory remedy was available before the High Court, it would not be appropriate to exercise writ jurisdiction when the remedy of appeal before the High Court could not be said to be the remedy which was not equally efficacious. We do not dispute the proposition of law as is sought to be propounded by Mr.Kumar, that in the light of the existence of an alternate remedy, the writ jurisdiction ought not to be exercised. It is equally settled that when an order is passed without jurisdiction, it may not be necessary to relegate the petitioner to the remedy of appeal. In the present case, the petit ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 00-2001. The Tribunal accordingly directed the assessing officer to recompute the income of the assessee by treating the income so received as income from other sources . 3. Two miscellaneous applications under section 254(2) of the Income Tax Act, 1961 ( the Act ) seeking rectification of the order came to be fled, one by the petitioner and the other by the revenue. The issue highlighted by the petitioner inter-alia was that the Tribunal had not addressed itself to the question raised in the appeal whether a notional income could be brought to tax under the head income from other sources . 4. In so far as the revenue s application is concerned, it highlighted the fact that the Tribunal had erroneously placed reliance upon the Tribu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ng in appeal over the order passed by its Co-ordinate Bench for assessment years 1996-97 to 2000-2001 which was not permissible. It, therefore, set aside the impugned order dated 28th July 2017 of the Tribunal only to the extent it allowed the revenue s application for rectification of the order dated 6th June 2016. 7. Pursuant to the aforementioned development, the Tribunal passed yet again an order dated 2nd September 2022 which is impugned in the present petition by holding that the income of the petitioner had to be treated as income from house property . 8. The crux of the grievance expressed today before us in regard to the order impugned dated 2nd September 2022 is that by holding that the income of the petitioner has to be tr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... legate the petitioner to the remedy of appeal. In the present case, the petitioner has made out a prima-facie case for interference inasmuch as we are of the opinion that the Tribunal, by virtue of its order dated 28th July 2017 has in fact reviewed its earlier order dated 6th June 2016, in which it was specifically ordered that the income of the petitioner be treated as income from other sources . The consequence of the rectification application filed by the petitioner being allowed was only to the extent that the issue regarding taxability of a notional income had to be considered. 11. Be that as it may, we stay the operation of the order impugned dated 2nd September 2022. However, considering the limited nature of controversy, we dir ..... X X X X Extracts X X X X X X X X Extracts X X X X
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