R/Special Civil Application v. Income Tax Officer Ward 9(1

IN THE HIGH COURT OF GUJARAT AT AHMEDABAD R/SPECIAL CIVIL APPLICATION NO. 14756 of 2020=============================================M/S NIDHI CORPORATION THROUGH ITS AUTHORISED SIGNATORYVASANTKUMAR UMEDBHAI PATEL VersusINCOME TAX OFFICER WARD 9(1) =============================================Appearance:HLP ASSOCIATES LLP(9263) for the Petitioner(s) No. 1M R BHATT & CO.(5953) for the Respondent(s) No. 1 ============================================= CORAM: HONOURABLE MR. JUSTICE J.B.PARDIWALAandHONOURABLE MS. JUSTICE NISHA M. THAKORE Date : 01/02/2022ORAL ORDER (PER : HONOURABLE MS. JUSTICE NISHA M. THAKORE) 1.By this writ application, the writ applicant has invokedextra ordinary writ jurisdiction of this Court under Article 226 ofthe Constitution of India and has prayed for the followingreliefs: “(A)This Hon’ble court may be pleased to issue a writ ofmandamus or any other appropriate writ in the nature of mandamusand/or an appropriate writ, order or direction, quashing and settingaside the order dated 18.07.2014 passed by the Income-TaxAppellate Tribunal, ‘A’ Bench, Ahmedabad in ITA No.874/AHD/2011; (B)This Hon’ble Court may be pleased to issue an appropriatewrit, order or direction directing the Income-Tax Appellate Tribunal,Ahmedabad for hearing the Second Appeal being ITANo.874/AHD/2011, on its own merits after considering the relevantdocuments that are available on record; (C)Pending admission, hearing and final disposal of this petition,this Hon’ble Court may be pleased to stay the operation, executionand implementation of the order dated 18.07.2014 passed by theIncome- Tax Appellate Tribunal, ‘A’ Bench, Ahmedabad in ITANo.874/AHD/2011; (D)This Hon’ble Court may be pleased to grant such other andfurther relief and/or order in the interest of justice in favour of thepetitioner.” 2.The brief facts, which emerges from the record of thepresent petition, are summarized as under: 2.1The writ applicant has filed return of income for the A.Y.2007-08 on 31.10.2007 thereby declaring the total income as“NIL” after claiming deduction under Section 80IB(10) of theIncome Tax Act, 1961 (herein after referred to as “the Act”)amounting to Rs.25,69,952/-. The case of the writ applicantwas selected for scrutiny assessment and notices in regardthereof were issued upon the writ applicant. The writ applicanthad appeared before the Assessing Officer through hisauthorized representative in order to substantiate its claimunder Section 80IB of the Act. Relevant documents in thenature of approved plan, audit report in Form – 10CCB,development permission, B.U. permission and developmentagreement entered into by the writ applicant with onePravinbhai Ramdas Patel as regards the housing project, werealso placed for consideration. 2.2The Assessing Officer after examining the aforesaiddocuments vide order dated 24.12.2009 was pleased todisallow the entire claim of the writ applicant under Section80IB(10) of the Act to the tune of Rs.25,69,952/-. Beingaggrieved and dissatisfied with the aforesaid order of theAssessing Officer, the writ applicant had preferred an appealunder Section 246A of the Act before the Commissioner ofIncome Tax (Appeals) -XV, Ahmedabad. The said appeal wasregistered as Appeal No.CIT(A)-XV/ITO/9(1)/303/09-10. TheCommissioner of Income Tax (Appeals)-XV, Ahmedabad afterconsidering the written submissions of the writ applicant as well as upon perusal of the record ultimately, dismissed theappeal vide order dated 25.01.2011. 2.2The Assessing Officer after examining the aforesaiddocuments vide order dated 24.12.2009 was pleased todisallow the entire claim of the writ applicant under Section80IB(10) of the Act to the tune of Rs.25,69,952/-. Beingaggrieved and dissatisfied with the aforesaid order of theAssessing Officer, the writ applicant had preferred an appealunder Section 246A of the Act before the Commissioner ofIncome Tax (Appeals) -XV, Ahmedabad. The said appeal wasregistered as Appeal No.CIT(A)-XV/ITO/9(1)/303/09-10. TheCommissioner of Income Tax (Appeals)-XV, Ahmedabad afterconsidering the written submissions of the writ applicant as well as upon perusal of the record ultimately, dismissed theappeal vide order dated 25.01.2011. 2.3The writ applicant thereafter, preferred the second appealbefore the Income Tax Appellate Tribunal, ‘A’ Bench,Ahmedabad, under Section 253 of the Act. The said secondappeal was registered as ITA No.874/AHD/2011. The aforesaidsecond appeal was heard by the Income Tax Appellate Tribunalin absence of the writ applicant as no representative of the writapplicant had remained present on the date of hearing. TheITAT vide order dated 18.07.2014 was pleased to summarilydismissed the appeal of the writ applicant-assessee. Beingaggrieved and dissatisfied with the aforesaid order dated18.07.2014 passed by the ITAT, ‘A’ Bench, Ahmedabad, thewrit applicant has approached this Court by filing this writapplication in the year 2020. 3.This Court upon hearing Mr. Chintan Dave, the learnedcounsel appearing for the writ applicant has passed thefollowing order dated 12.01.2021, which reads as under: “1. We have heard Mr. Chintan Dave, the learned counsel appearingfor the writ-applicant.for the writ-applicant. 2. Mr. Dave, the learned counsel would submit that the tribunaldismissed the appeal on the ground of the non-appearance of thewrit-applicant herein as well as his lawyer. He would submit that thetribunal ought not to have dismissed the appeal on the ground ofnon-prosecution. In this regard, Mr. Dave seeks to rely on Rule 24 ofthe Income Tax Rules, 1963 which makes it abundantly clear thatthe tribunal cannot dismiss the appeal without adverting to themerits. Even on the day on which the hearing is adjourned, theappellant chose not to appear in present or through an authorizedrepresentative. It would incumbent upon the tribunal to dispose ofthe appeal on merits. Mr. Dave, the learned counsel seeks to rely onthe decision of this High Court in the case of Sanket Estate &Finance (P.) Ltd. Vs. Commissioner of Income-tax [2013] 32taxmann.com 342 (Gujarat). 3. Let Notice be issued to the respondents for final disposal,returnable on 10/02/2021. On the returnable date, notify the matteron top of the board.” 3. Let Notice be issued to the respondents for final disposal,returnable on 10/02/2021. On the returnable date, notify the matteron top of the board.” 4.Mr. Manish R. Bhatt, the learned Senior Counsel assistedby Mr. Munjaal Bhatt, the learned counsel, has entered hisappearance on behalf of the respondent authorities. Mr. Bhatt,has vehemently objected to the maintainability of the writapplication by drawing attention of this Court to the reliefs sosought for in the present writ application. Mr. Bhatt, thelearned Senior Counsel has further submitted that the orderunder challenge is dated 18.07.2014 passed by the AppellateTribunal dismissing the appeal of the Assessee for non-prosecution whereas the present petition is filed in the year2021, which suffers from delay and latches. It is furthersubmitted that against the order of ITAT, there is provision ofstatutory appeal under Section 260A of the Act where the writapplicant is expected to file appeal within the statutory periodof limitation before this Court. However, for the reasons bestknown to the writ applicant, the writ applicant has preferred toinvoke extra-ordinary writ jurisdiction of this Court underArticle 226 of the Constitution of India. It is also submitted thateven otherwise on merits also, the sole ground raised by thewrit applicant in the present writ application is fallacious in asmuch as that the address mentioned by the assessee in thepresent writ application and that mentioned in the appealmemo before the Appellate Authorities is the same and asreflected from the order impugned, the same can be presumedto be communicated to the writ applicant. Thus, it is submittedthat in absence of any sufficient explanation tendered by thewrit applicant for the delay which has occurred in challengingthe impugned order of the ITAT, the present writ applicationmay not be entertained more particularly, when the statutory remedy available under Section 260A of the Act itself is barredunder the provisions of limitation. 7.Countering the arguments advanced by the learnedcounsel appearing for the department, Mr. Dave, the learnedcounsel appearing for the writ applicant has referred to andrelied upon the decision of this Court in the case of SanketEstate & Finance Pvt. Ltd. vs. The Commissioner of Income Tax(Supra) and has invited attention of this Court to the relevantobservations made therein, which are reproduce as under: “23.In the instant case, as could be noted from the orderimpugned, that the Tribunal has chosen to dismiss the appeal on theground of non-prosecution. It also noted that RPAD was sent and thesame had returned with the remark of the postal department asnone having claimed the same. Instead of deciding the matter onmerits, it chose to dismiss the same for want of prosecution and thisorder in our opinion is contrary to the provision of law. “23.In the instant case, as could be noted from the orderimpugned, that the Tribunal has chosen to dismiss the appeal on theground of non-prosecution. It also noted that RPAD was sent and thesame had returned with the remark of the postal department asnone having claimed the same. Instead of deciding the matter onmerits, it chose to dismiss the same for want of prosecution and thisorder in our opinion is contrary to the provision of law. 24. When the Supreme Court decided the case of Commissionerof Income-tax vs. S. Chenniappa Mudaliar(supra), no amendment inRule in the Income-Tax Appellate Tribunal Rules was made as yet.Rule 24 of the Income Tax Rules, 1963 makes it abundantly clearthat the Tribunal cannot dismiss the appeal without adverting to themerits. Even on the day on which the hearing is adjourned, theappellant chose not to appear in person or through an authorisedrepresentative. It is incumbent upon the Tribunal to dispose of theappeal on merits after hearing the respondent and afterwards if theappellant appears and satisfy the Tribunal, sufficient cause for itsnon-appearance on the date of hearing, the Tribunal can set asidethe ex-parte order and restore the appeal. However, reliance of theTribunal on the decision of the Delhi Bench in the case of CIT vs.Multiplan India (P) Ltd (supra) is erroneous and, therefore, requiresto be set aside. In the instant case, it can be noted from the lettersaddressed by the present appellant to the Tribunal that it wasawaiting transfer of both the appeals of 1998-99 and 1999-2000since CIT (Appeals) had relied upon such orders of earlier years. 25.If the record of these appeals were necessary for proceedingswith the appeals, which were pending of the year 2001 to 2002,2002-03, in the instant case, it was a matter of transfer fromMumbai Bench to the Ahmedabad Bench of these appeals and thepresent appellant has made out sufficient cause indicating from thematerial placed on record that it had never abandoned the cause.On the contrary, it had consistently pursued the matters as it washaving a direct bearing on the appeals of subsequent years. Evenotherwise, what is the requirement of the law is of adjudication onmerit even when either side or both the sides choose not to contest.In view of the aforesaid, we are of the considered view that theTribunal erred in dismissing the appeal only on the ground of non- prosecution without adverting to the merits of the matterand,therefore, we set aside the order impugned dated 4.8.2006passed by the Tribunal and also remand the matter to the Tribunal toadjudicate the same on merits. Appeal is allowed accordingly.” prosecution without adverting to the merits of the matterand,therefore, we set aside the order impugned dated 4.8.2006passed by the Tribunal and also remand the matter to the Tribunal toadjudicate the same on merits. Appeal is allowed accordingly.” 8.It was therefore, submitted that the Tribunal could nothave dismissed the appeal for want of prosecution, without thesame being decided on merits. Mr. Dave, the learned counselappearing for the writ applicant had further submitted that infact the writ applicant was not aware about the impugnedorder dated 18.07.2014 as the assessee was never served withthe said order. In the peculiar facts and circumstances, the writapplicant had sufficient cause for not to approach forrestoration of second appeal within the period of six monthsfrom the end of the month in which the impugned order waspassed, in view of the statutory time period envisaged underthe Act. At the same time, the appeal provided under Section260A of the Act has also got time barred. The learned counselappearing for the writ applicant had further drawn attention ofthis Court to the grounds raised in the petition memo and hascontended that the writ applicant has tendered sufficientreasons to explain the delay which had occurred in availing thestatutory remedy. It was further contended that the statutoryremedy is no more available to the writ applicant in view of thebar created by virtue of period of limitation. Thus, it wascontended that in absence of any statutory remedy beingavailable to the writ applicant, the only efficacious remedyavailable to the writ applicant is to invoke extra-ordinary writjurisdiction of this Court under Article 226 of the Constitution ofIndia in order to redress grievance of the writ applicant. 9.Once again by emphasizing on the fact with regard toviolation of principles of natural justice, the learned counsel appearing for the writ applicant had submitted that writjurisdiction of this Court is the only efficacious remedyavailable for the writ applicant and has therefore, prayed toentertain the writ application and to grant the reliefs so soughtfor. 10.At the outset, we take note of the fact about thepreliminary objection raised by the learned counsel for thedepartment as regards the maintainability of the presentpetition. Admittedly, the order impugned in the present writapplication is dated 18.07.2014 passed by the Income TaxAppellate Tribunal, ‘A’ Bench, Ahmedabad, in exercise ofpowers conferred under Section 253 of the Act, it is equallytrue that the order impugned is dated 18.07.2014 and the writpetition has been affirmed by the writ applicant on 28.10.2020,whereby the Notice came to be issued by this Court vide orderdated 12.01.2021. Hence, there is no escape to the fact thatthe statutory appeal provided under Section 260A of the Actbefore this Court is time barred as on date of filing of this writapplication. In the peculiar facts and circumstances of thecase, the limited issue which falls for our considertion iswhether this Court in exercise of powers conferred underArticle 226 of the Constitution of India can entertain the writpetition more particularly, when the efficacious statutoryremedy of appeal provided under Section 260A of the Act isbarred by law of limitation? 11.It would be appropriate to consider the relevant provisionof 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 inappeal by the Appellate Tribunal before the date of establishment ofthe National Tax Tribunal, if the High Court is satisfied that the caseinvolves a substantial question of law. 11.It would be appropriate to consider the relevant provisionof 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 inappeal by the Appellate Tribunal before the date of establishment ofthe National Tax Tribunal, if the High Court is satisfied that the caseinvolves a substantial question of law. (2) The Principal Chief Commissioner or Chief Commissioner or thePrincipal Commissioner or Commissioner or an assessee aggrievedby any order passed by the Appellate Tribunal may file an appeal tothe High Court and such appeal under this sub-section shall be— (a) filed within one hundred and twenty days from the date onwhich the order appealed against is received by the assesseeor the Principal Chief Commissioner or Chief Commissioner orPrincipal Commissioner or Commissioner;which the order appealed against is received by the assesseeor the Principal Chief Commissioner or Chief Commissioner orPrincipal Commissioner or Commissioner; (b) [***] (c) in the form of a memorandum of appeal precisely statingtherein the substantial question of law involved.therein the substantial question of law involved. (2A) The High Court may admit an appeal after the expiry of theperiod of one hundred and twenty days referred to in clause (a) ofsub-section (2), if it is satisfied that there was sufficient cause fornot filing the same within that period. (3) Where the High Court is satisfied that a substantial question oflaw is involved in any case, it shall formulate that question. (4) The appeal shall be heard only on the question so formulated,and the respondents shall, at the hearing of the appeal, be allowedto argue that the case does not involve such question : Providedthat nothing in this sub-section shall be deemed to takeaway or abridge the power of the court to hear, for reasons to berecorded, the appeal on any other substantial question of law notformulated by it, if it is satisfied that the case involves suchquestion. (5) The High Court shall decide the question of law so formulatedand deliver such judgment thereon containing the grounds on whichsuch decision is founded and may award such cost as it deems fit. (6) The High Court may determine any issue which— (a) has not been determined by the Appellate Tribunal; or (b) has been wrongly determined by the Appellate Tribunal, byreason of a decision on such question of law as is referred toin sub-section (1).reason of a decision on such question of law as is referred toin sub-section (1). (7) Save as otherwise provided in this Act, the provisions of theCode of Civil Procedure, 1908 (5 of 1908), relating to appeals to theHigh Court shall, as far as may be, apply in the case of appealsunder this section.” 12. Thus, Section 260A of the Act pertains to the statutoryappeal provided before this Court from every order passed inappeal by the Tribunal. On interpretation of Section 260A of theAct, it is evident that High Court is conferred with jurisdictionto admit if, the High Court is satisfied that the case involvessubstantial question of law. The bare reading of sub section (2) (7) Save as otherwise provided in this Act, the provisions of theCode of Civil Procedure, 1908 (5 of 1908), relating to appeals to theHigh Court shall, as far as may be, apply in the case of appealsunder this section.” 12. Thus, Section 260A of the Act pertains to the statutoryappeal provided before this Court from every order passed inappeal by the Tribunal. On interpretation of Section 260A of theAct, it is evident that High Court is conferred with jurisdictionto admit if, the High Court is satisfied that the case involvessubstantial question of law. The bare reading of sub section (2) (a) of Section 260 implies the period of limitation of 120 daysfor filing an appeal before this Court against the every orderpassed in appeal by the Tribunal. The said statutory provisionitself makes it clear that the appeal shall be filed within 120days from the date on which the order appeal against isreceived by the assessee. Thus, the receipt of certified copy ofthe order of the Tribunal would trigger the commencement oflimitation period under Section 260A(2)(a) of the Act. Thefurther analysis of the aforesaid provision confers powers uponHigh Court to admit an appeal after the expiry of period of 120days. Undoubtedly, the Income Tax Act being a Special Actexpressly provides in Section 260A the special period oflimitation as the legislature intended to be a complete Code byitself, which alone should govern the matters pertaining to thespecial statute. Thus, the scheme of the Act is suggestive ofthe fact that the time limit is prescribed under Section 260A ofthe Act to file an appeal before the High Court and thelimitation can be extended by the Court by invoking theprovisions of Section 5 of the Limitation Act, 1963. 13.At this juncture, it would also be necessary to look intothe expression ‘received by the assessee’. If there is delay infiling an appeal to the High Court under Section 260A, thereasons offered has to be essentially analysed in the facts ofeach case and cannot be cast in a rigid mode. It is true that anexplanation offered by the assessee must be construed in aliberal manner so as to ensure that an otherwise genuinecause of justice is not defeated by adherence to technicalprecedence. 14.In the case on hand, the assessee has challenged theorder passed by the Tribunal dated 18.07.2014 whereby theTribunal has choose to not to entertain the second appealpreferred by the writ applicant-assessee by summarilyrejecting for want of prosecution. However, we cannot obviateof the fact that the matter on hand is to be considered inexercise of powers conferred under Article 226 of theConstitution of India and not in statutory appeal as providedunder Section 260A of the Act. 15.At this juncture, we would like to refer to the observationsmade by the Coordinate Bench of this Court in the case ofPanoli Intermediate (India) Pvt. Ltd. vs. Union of India andOthers, reported in (2016) GLH (2) 337. The Division Bench ofthis Court had formulated the following questions of law andhad referred the matter to the larger Bench. 16.The larger Bench of this Court after taking intoconsideration the various decisions of the Hon’ble Apex Courton the issue on hand observed as under: 15.At this juncture, we would like to refer to the observationsmade by the Coordinate Bench of this Court in the case ofPanoli Intermediate (India) Pvt. Ltd. vs. Union of India andOthers, reported in (2016) GLH (2) 337. The Division Bench ofthis Court had formulated the following questions of law andhad referred the matter to the larger Bench. 16.The larger Bench of this Court after taking intoconsideration the various decisions of the Hon’ble Apex Courton the issue on hand observed as under: “22.In order to appreciate the contentions raised by therespective sides, it would be appropriate to first consider the scopeand ambit of the power under Article 226 of the Constitution. Assuch, the question is no more res integra when the jurisdictionof the High Court to entertain the petition for writ of certiorari underArticle 226 of the constitution or power of superintendence underArticle 227 of the Constitution against the orders are to beconsidered. It can hardly be disputed that the power of thisCourt under Articles 226 and 227 of the Constitution areconferred by the Constitution and cannot be diluted ornullified by any statute or legislation. At this stage, usefulreference can be made to the decision of the Apex Court in the caseof Surya Dev Rai V. Ram Chander Rai (2003) 6 SCC 675 whereinthe question came up for consideration before the Apex Courtas to whether the amendment made in the Code of Civil Procedureunder section 115 would in any manner affect the jurisdiction underArticles 226 and 227 of the Constitution. The Apex Court inthe said decision, after considering various decisions, concludedat para 38 as under: “38. Such like matters frequently arise before the HighCourts. We sum up our conclusions in a nutshell, even atthe risk of repetition and state the same as hereunder :- (1) Amendment by Act No.46 of 1999 with effectfrom 01.07.2002 in Section 115 of Code of CivilProcedure cannot and does not affect in any manner thejurisdiction of the High Court under Articles 226 and 227 ofthe Constitution. (2) Interlocutory orders, passed by the courtssubordinate to the High Court, against which remedyof revision has been excluded by the CPC AmendmentAct No. 46 of 1999 are nevertheless open to challenge in,and continue to be subject to, certiorari andsupervisory 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 wherethere exists none, or (ii) in excess of itsjurisdiction – by overstepping or crossing thelimits of jurisdiction, or (iii) acting in flagrantdisregard of law or the rules of procedure or acting inviolation of principles of natural justice where there isno procedure specified, and thereby occasioningfailure of justice. (4) Supervisory jurisdiction under Article 227 of theConstitution is exercised for keeping the subordinatecourts within the bounds of their jurisdiction. Whenthe subordinate Court has assumed a jurisdiction which itdoes not have or has failed to exercise ajurisdiction which it does have or the jurisdictionthough available is being exercised by the Court in amanner not permitted by law and failure of justice or graveinjustice has occasioned thereby, the High Court maystep in to exercise its supervisory jurisdiction. (4) Supervisory jurisdiction under Article 227 of theConstitution is exercised for keeping the subordinatecourts within the bounds of their jurisdiction. Whenthe subordinate Court has assumed a jurisdiction which itdoes not have or has failed to exercise ajurisdiction which it does have or the jurisdictionthough available is being exercised by the Court in amanner not permitted by law and failure of justice or graveinjustice has occasioned thereby, the High Court maystep in to exercise its supervisory jurisdiction. (5) Be it a writ of certiorari or the exercise ofsupervisory jurisdiction, none is available to correct mereerrors of fact or of law unless the following requirementsare satisfied : (i) the error is manifest andapparent on the face of the proceedings such as when it isbased on clear ignorance or utter disregard of theprovisions of law, and (iii) a grave injustice or gross failureof justice has occasioned thereby. (6) A patent error is an error which is self-evident, i.e., which can be perceived ordemonstrated without involving into any lengthy orcomplicated argument or a long drawn process ofreasoning. Where two inferences are reasonablypossible and the subordinate court has chosen totake one view the error cannot be called gross orpatent. (7) The power to issue a writ of certiorari and thesupervisory jurisdiction are to be exercised sparingly andonly in appropriate cases where the judicial conscience ofthe High Court dictates it to act lest a gross failure ofjustice or grave injustice should occasion. Care, cautionand circumspection need to be exercised, when anyof the abovesaid two jurisdictions is sought to be invokedduring the pendency of any suit or proceedings in asubordinate court and the error though calling forcorrection is yet capable of being corrected at theconclusion of the proceedings in an appeal or revisionpreferred there against and entertaining a petitioninvoking certiorari or supervisory jurisdiction of HighCourt would obstruct the smooth flow and/or earlydisposal of the suit or proceedings. The High Court mayfeel inclined to intervene where the error is such, as,if not corrected at that very moment, may becomeincapable of correction at a later stage and refusalto intervene would result in travesty of justice or wheresuch refusal itself would result in prolonging of the lis. (8) The High Court in exercise of certiorari or supervisoryjurisdiction will not covert itself into a Court of Appeal andindulge in re-appreciation or evaluation of evidence orcorrect errors in drawing inferences or correct errorsof mere formal or technical character. (9) In practice, the parameters for exercisingjurisdiction to issue a writ of certiorari and those callingfor exercise of supervisory jurisdiction are almost similarand the width of jurisdiction exercised by the HighCourts in India unlike English courts has almostobliterated the distinction between the twojurisdictions. While exercising jurisdiction to issue awrit of certiorari the High Court may annul or set aside theact, order or proceedings of the subordinate courtsbut cannot substitute its own decision in placethereof. In exercise of supervisory jurisdiction theHigh Court may not only give suitable directions so asto guide the subordinate court as to the manner in which itwould act or proceed thereafter or afresh, the HighCourt may in appropriate cases itself make an order insupersession or substitution of the order of thesubordinate court as the court should have made in thefacts and circumstances of the case. Though we have tried to lay down broad principles andworking rules, the fact remains that the parameters for exerciseof jurisdiction under Articles 226 or 227 of the Constitutioncannot be tied down in a straitjacket formula or rigidrules. Not less than often the High Court would be facedwith dilemma. If it intervenes in pending proceedings thereis bound to be delay in termination of proceedings. If it doesnot intervene, the error of the moment may earn immunity fromcorrection. The facts and circumstances of a given case may makeit more appropriate for the High Court to exercise self-restraint and not to intervene because the error of jurisdictionthough committed is yet capable of being taken care of andcorrected at a later stage and the wrong done, if any, would be set right and rights and equities adjusted in appeal orrevision preferred at the conclusion of the proceedings. But theremay be cases where 'a stitch in time would save nine'. At the end,we may sum up by saying that the power is there but theexercise is discretionary which will be governed solely bythe dictates of judicial conscience enriched by judicial experienceand practical wisdom of the Judge.” 23. The aforesaid decision was considered by the Apex Court in thecase of Mahendra Saree Emporium vs. G.V. Srinivasa Murthyreported at (2005) 1 SCC 481, wherein while considering theaspects as to whether any legislation subordinate to theConstitution can whittle down the power under the Constitution ofthe Apex Court under Article 226 of the Constitution. It washeld that any legislation subordinate to the Constitutioncannot whittle down the jurisdiction and power conferredon the constitutional courts of the country. 24. Once again, in the case of Salem Advocate BarAssociation, T.N. vs. Union of India reported at (2005) 6 SCC 344, thequestion arose before the Apex Court was as to whetheramendment made under section 115 of the Code of Civil Procedurewould take away the constitutional jurisdiction of the High Court ornot. It was held by the Apex Court after considering the earlierdecision of the Apex Court in the case of Surya Dev Rai (supra)that curtailment of revisional jurisdiction of the High Courtunder Section 115 of the Code of Civil Procedure does not take awayand could not have taken away the constitutional jurisdictionof the High Court. But it was also further held that the powerexists, untrammelled by the amendment in Section 115 and isavailable to be exercised subject to rules of self-discipline andpractice which are as well settled. 25. Recently, the decision of the Apex Court in the case of SuryaDev Rai (supra) as was referred to the Larger Bench, on the point asto whether the order of the Civil Court was amenable to the writjurisdiction under Article 226 of the Constitution or not, andthe Larger Bench of the Apex Court in the case of Radhey Shyam &Anr. Vs. Chhabi Nath & Ors. in Civil Appeal No.2548/09 videits decision dated 26.02.2015, overruled the decision of the ApexCourt in the case of Surya Dev Rai (supra), but only the to the extentthat the judicial orders of the Civil Court are not amenable to thewrit jurisdiction under Article 226 of the Constitution and it was heldthat the jurisdiction under Article 227 of the Constitution isdistinct from the jurisdiction under Article 226 of theConstitution. However, the pertinent aspect is that theearlier view taken by the Apex Court in the case of Surya Devi Rai(supra) and Mahendra Saree Emporium (supra) and Salem AdvocateBar Association (supra) that no legislation subordinate to theconstitution can whittle down the jurisdiction conferred bythe Constitution has been reiterated. 26. The aforesaid discussion would go to show that no legislationincluding section 35 of the Act can whittle down or dilute or nullifythe power of the constitutional court under Article 226 of theConstitution but the parameter for exercise of the writ ofcertiorari would be in a case wherethe Tribunal or the authority has acted without jurisdiction or inexcess of jurisdiction or acted in flagrant disregard of the law or the rules of procedure or have acted in violation to theprinciples of natural justice and thereby, resulting intofailure of justice. The certiorari jurisdiction may be exercisedwhen the error if not corrected at the very moment maybecome incapable of correction at the later stage and refusal tointervene would result travesty of justice. But the jurisdiction ofwrit of certiorari should not be converted into the court of appealor indulge into re-appreciation of the evidence or evaluation ofthe evidence or correction of the errors were two viewsare possible. The High Court while exercising thejurisdiction of writ of certiorari may annul or set aside the act or setaside the proceeding, but cannot substitute its own decision in placethereof. The High Court while exercising the power has toapply self restraint. It was well summed up by the Apex Court inthe case of Surya Dev Rai (supra) that the power is there but theexercise is discretionary which will be solely governed bythe dictate of the judicial conscience, enriched by judicialexperience and practical wisdom of the Judge. 27. The aforesaid discussion goes to show that it is not possible toobserve that in a case where the limitation period of preferringappeal or further period of condonation of delay is over, the HighCourt will have no jurisdiction under Article 226 of theConstitution but the exercise of such power has to be inexceptional cases where gross injustice is satisfactorilydemonstrated. Otherwise, in normal circumstances, the HighCourt would give appropriate weightage to the statutoryprovisions because the things which cannot be done directly asper the statute can not be permitted to be done indirectly in writjurisdiction unless a grave and strong case is made out beforethe High Court that noninterference to the order under challengewould result into a gross injustice to the party suffering theorder. 28. In the decision of the Apex Court in the case of SinghEnterprises v. Commissioner of Central Excise, Jamshedpurreported at 2008 221 ELT 163 (SC), which has been relied upon bythe learned counsel Mr. Parikh, the Apex Court wasconsidering the scope and ambit of sufficient cause found inthe various statutes and thereby to consider to give the effect of thestatutory provision made for limitation. In the said case, thequestion as to whether the provisions of section 35 of the Actaffects the jurisdiction of the High Court under Article 226 ofthe Constitution for exercise of the constitutional power ornot was not considered by the Apex Court. Therefore, thecontention of the learned counsel Mr.Parikh that the decision of theHigh Court taking the view that it had no power tocondone the delay after the expiry of the period of 30 days shouldmean that the High Court will have no jurisdiction under Article 226in a case where the period of 30 days is over cannot becountenanced for the simple reason that whether the High Courtshould exercise the power to condone the delay after expiry ofthe period of 30 days while exercising the power under Article 226of the Constitution is one thing, but whether the jurisdiction of theHigh Court under Article 226 of the Constitution is affectedby the statutory provision of section 35 of the Act is another thing.It cannot be disputed if the High Court declines to exercise thepower after the expiry of the period of 30 days if the case is notfalling in the exceptional circumstance where gross injustice is not satisfactorily demonstrated before the High Court. Hence, thesaid decision is of no help to Mr. Parikh for canvassing hiscontention. 29. In none of the decisions upon which the reliance has beenplaced by Mr.Parikh, the question was examined as towhether the statutory provision under section 35 of the Actaffects the jurisdiction of the High Court under Article 226 of theConstitution or not and therefore, we do not find that the saiddecisions are of any help to Mr.Parikh. At the same time, thereis considerable force in the contention of Mr.Parikh that even whileexercising the power under Article 226 of the Constitution, theHigh Court would normally go by the statutory provision. Butsuch contention can be accepted in normal circumstancesunless the High Court finds that there is extraordinary casesatisfactorily demonstrated before it of grave injustice or noninterference by the High Court would result into gross injustice. 30.We may now proceed to answer the question : (1) Question No.1 is answered in negative by observing thatthe limitation provided under section 35 of the Act cannot becondoned in filing the appeal beyond the period of 30 days asprovided by the proviso nor the appeal can be filed beyond theperiod of 90 days. (2) The second question is answered in negative to the extentthat the petition under Article 226 of the Constitution would not liefor the purpose of condonation of delay in filing the appeal. (3) On the third question, the answer is in affirmative, butwith the clarification that: A) The petition under Article 226 of the Constitutioncan be preferred for challenging the order passed bythe original adjudicating authority in followingcircumstances that A.1) The authority has passed the order withoutjurisdiction and by assuming jurisdiction which there existnone, or A.2) Has exercised the power in excess of thejurisdiction and byoverstepping or crossing the limits of jurisdiction, or (2) The second question is answered in negative to the extentthat the petition under Article 226 of the Constitution would not liefor the purpose of condonation of delay in filing the appeal. (3) On the third question, the answer is in affirmative, butwith the clarification that: A) The petition under Article 226 of the Constitutioncan be preferred for challenging the order passed bythe original adjudicating authority in followingcircumstances that A.1) The authority has passed the order withoutjurisdiction and by assuming jurisdiction which there existnone, or A.2) Has exercised the power in excess of thejurisdiction and byoverstepping or crossing the limits of jurisdiction, or A.3) Has acted in flagrant disregard to law or rules orprocedure or acted in violation of principles of natural justicewhere no procedure is specified. B) Resultantly, there is failure of justice or it has resulted intogross injustice. We may also sum up by saying that the power is there even inaforesaid circumstances, but the exercise is discretionarywhich will be governed solely by the dictates of the judicialconscience enriched by judicial experience and practical wisdomof the judge.” 17.The aforesaid decision of the larger bench came up forconsideration before the Supreme Court of India in the case ofAssistant Commissioner (CT) LTU, Kakinada & Ors. vs. M/s.Glaxo Smith Kline Consumer Health Care Limited reported inAIR 2020 SC 2819. The Supreme Court in the backdrop of thefacts in the said matter, examined the question as to “whetherthe High Court in exercise of its writ jurisdiction under Article226 of the Constitution of India ought to have entertain achallenge to the assessment order on the sole ground that thestatutory remedy of appeal against that order stood foreclosed”by the law of limitation. The relevant observations of theSupreme Court in the aforesaid matter is reproduce as under: “11. In the backdrop of these facts, the central question is: whetherthe High Court ought to have entertained the writ petition filed bythe respondent? As regards the power of the High Court to issuedirections, orders or writs in exercise of its jurisdiction under Article226 of the Constitution of India, the same is no more res integra.Even though the High Court can entertain a writ petition against anyorder or direction passed/action taken by the State under Article 226of the Constitution, it ought not to do so as a matter of course whenthe aggrieved person could have availed of an effective alternativeremedy in the manner prescribed by law (see Baburam PrakashChandra Maheshwari vs. Antarim Zila Parishad now Zila Parishad,Muzaffarnagar8 and also Nivedita Sharma vs. Cellular OperatorsAssociation of India & Ors.9). In Thansingh Nathmal & Ors. vs.Superintendent of Taxes, Dhubri & Ors.10, the Constitution Bench ofthis Court made it amply clear that although the power of the HighCourt under Article 226 of the Constitution is very wide, the Courtmust exercise self-imposed restraint and not entertain the writpetition, if an alternative effective remedy is available to theaggrieved person. In paragraph 7, the Court observed thus: “7. Against the order of the Commissioner an order forreference could have been claimed if the appellants satisfiedthe Commissioner or the High Court that a question of lawarose out of the order. But the procedure provided by the Actto invoke the jurisdiction of the High Court was bypassed, theappellants moved the High Court challenging the competenceof the Provincial Legislature to extend the concept of sale, andinvoked the extraordinary jurisdiction of the High Court underArticle 226 and sought to reopen the decision of the TaxingAuthorities on question of fact. The jurisdiction of the HighCourt under Article 226 of the Constitution is couched in wideterms and the exercise thereof is not subject to anyrestrictions except the territorial restrictions which areexpressly provided in the Articles. But the exercise of thejurisdiction is discretionary: it is not exercised merely because it is lawful to do so. The very amplitude of the jurisdictiondemands that it will ordinarily be exercised subject to certainself-imposed limitations. Resort that jurisdiction is not intendedas an alternative remedy for relief which may be obtained in asuit or other mode prescribed by statute. Ordinarily the Courtwill not entertain a petition for a writ under Article 226, wherethe petitioner has an alternative remedy, which without beingunduly onerous, provides an equally efficacious remedy. Againthe High Court does not generally enter upon a determinationof questions which demand an elaborate examination ofevidence to establish the right to enforce which the writ isclaimed. The High Court does not therefore act as a court ofappeal against the decision of a court or tribunal, to correcterrors of fact, and does not by assuming jurisdiction u