In The Case Of Saroj Ceramics Industries v. O/Taxap/459/2000 Judgment

IN THE HIGH COURT OF GUJARAT AT AHMEDABAD TAX APPEAL NO. 459 of 2000 With TAX APPEAL NO. 244 of 2001With TAX APPEAL NO. 161 of 2001 FOR APPROVAL AND SIGNATURE: HONOURABLE MR.JUSTICE KS JHAVERI andHONOURABLE MR.JUSTICE K.J.THAKER================================================================1 Whether Reporters of Local Papers may be allowed to see Nothe judgment ?2 To be referred to the Reporter or not ?No3 Whether their Lordships wish to see the fair copy of the Nojudgment ?4 Whether this case involves a substantial question of law as Noto the interpretation of the Constitution of India, 1950 or any order made thereunder ?5 Whether it is to be circulated to the civil judge ?No================================================================I.T.O.....Appellant(s)VersusP. NAVINKUMAR & COMPANY....Opponent(s)================================================================Appearance:MR SUDHIR M MEHTA, ADVOCATE for the Appellant(s) No. 1MR SN SOPARKAR, ADVOCATE for the Opponent(s) No. 1 O/TAXAP/459/2000 JUDGMENT ================================================================ CORAM: HONOURABLE MR.JUSTICE KS JHAVERIandHONOURABLE MR.JUSTICE K.J.THAKER Date : 16/12/2014 COMMON ORAL JUDGMENT (PER : HONOURABLE MR.JUSTICE KS JHAVERI) By these appeals, the appellant- revenue challenges the order of the Tribunal whereby the Miscellaneous Applications under section 254(2) preferred by the Department were rejected. Whileadmittingtheappeals,following substantial question of law was framed :- “Whether, the Appellate Tribunal is right in law and on facts in rejecting the application filed under section 254(2) though there was a clear mistake of law apparent from record ?” In the case of Saroj Ceramics Industries vs. Income-tax Officer reported in (2014) 42 taxmann.com 372 (Gujarat) wherein a Division Bench of this Court has held that against the order passed by the Tribunal under section 254(2) of the Act rejecting the Miscellaneous Application / rectification application, appeal under section 260A of the Act before this Court would not be maintainable and the aggrieved party may prefer Special Civil Application under Article 226 of the Constitution of India. Such petition under Article 226 of the Constitution of India thus would lie against the order of the Tribunal rejecting the application under section 254 (2) of the Act. The matter is squarely covered by the above decision of this Court. Therefore, in such cases, the appeal is not the remedy but writ petition under Article 226 of the Constitution is the appropriate remedy. Only on this ground, these appeals deserve to be dismissed and the same are dismissed accordingly. (K.S.JHAVERI, J.) zgs (K.J.THAKER, J)