Sardar Mohinder Singh v. The Income Tax Appellate Tribunal

IN THE HIGH COURT OF JUDICATURE AT PATNA CWJC No.6883 of 2008 SARDAR MOHINDER SINGH Versus THE INCOME TAX APPELLATE TRIBUNAL ----------- For the Petitioner : For the Respondent: Mr. S. K. Sharan Mr. Alok Kumar Sinha No. 1. ------------ P R E S E N THon'ble the Chief Justice & Hon'ble Mr. Justice Kishore K. Mandal ------------ Dated, the 4[th] August, 2008. We heard Mr. Alok Kumar Sinha No. 1, counsel for the petitioner. 2. On 30[th] December, 2005, the Income Tax Appellate Tribunal, Patna Bench, Patna disposed of the appeal preferred by the petitioner under section 254(1) of the Income Tax Act, 1961 (for short the Act of 1961). A miscellaneous application was made by the petitioner under section 254(2) of the Act of 1961. That came to be dismissed on 22[nd] June, 2007. 3. Section 254 of the Act of 1961 reads thus: “ 254(1) The Appellate Tribunal may, after giving both the parties to the appeal an opportunity of being heard, pass such orders thereon as it thinks fit. (2) The Appellate Tribunal may, at any time within four years from the date of the order, with a view to rectifying any mistake apparent from the record, amend any order passed by it under sub-section (1), and shall make such amendment if the mistake is brought to its notice by the assessee or the assessing officer: Provided that an amendment which has the effect of enhancing an assessment or reducing a refund or otherwise increasing the liability of the assessee, shall not be made under this sub-section unless the Appellate Tribunal has given notice to the assessee of its intention to do so and has allowed the assessee a reasonable opportunity of being heard: Provided further that any application filed by the assessee in this sub-section on or after the first day of October, 1998, shall be accompanied by a fee of fifty rupees. (2A) In every appeal, the Appellate Tribunal, where it is possible, may hear and decide such appeal within a period of four years from the end of the financial year in which such appeal is filed under sub-section (1) or sub-section (2) of Section 253: Provided that the Appellate Tribunal may, after considering the merits of the application made by the assessee, pass an order of stay in any proceeding relating to an appeal filed under sub-section (1) of Section 253, for a period not exceeding one hundred and eighty days from the date of such order and the Appellate Tribunal shall dispose of the appeal within the said period of stay specified in that order: Provided further that where such appeal is not so disposed of within the said period of stay as specified in the order of stay, the Appellate Tribunal may, on an application made in this behalf by the assessee and on being satisfied that the delay in disposing of the appeal is not attributable to the assessee, extend the period of stay, or pass an order of stay for a further period or periods as it thinks fit; so, however, that the aggregate of the period originally allowed and the period or periods so extended or allowed shall not, in any case, exceed three hundred and sixty five days and the Appellate Tribunal shall dispose of the appeal within the period or periods of stay so extended or allowed: Provided also that if such appeal is not so disposed of within the period allowed under the 1[st]proviso or the period or periods extended or allowed under the 2[nd] proviso, which shall not, in any case, exceed three hundred and sixty five days, the order of stay shall stand vacated after the expiry of such period or periods, even if the delay in disposing of the appeal is not attributable to the assessee. (2B) The cost of any appeal to the Appellate Tribunal shall be at the discretion of that Tribunal. (3) The Appellate Tribunal shall send a copy of any orders passed under this Section to the assessee and to the Commissioner. (4) Save as provided in the National Tax Tribunal Act, 2005, orders passed by the Appellate Tribunal on appeal shall be final.” 4. From every order passed in appeal by the Appellate (2B) The cost of any appeal to the Appellate Tribunal shall be at the discretion of that Tribunal. (3) The Appellate Tribunal shall send a copy of any orders passed under this Section to the assessee and to the Commissioner. (4) Save as provided in the National Tax Tribunal Act, 2005, orders passed by the Appellate Tribunal on appeal shall be final.” 4. From every order passed in appeal by the Appellate Tribunal, the appeal is maintainable to High Court under section 260- A of the Act of 1961. Section 260-A reads thus : “ 260A (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 Chief Commissioner or the 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 appealed against is received by the assessee or the Chief Commissioner or Commissioner; © in the form of a memorandum of appeal precisely stating therein the substantial question of law involved. (3) Where the High Court is satisfied that a substantial question of law is involved in any case, it shall formulate that question. (4) The appeal shall be heard only on the question so formulated, and the respondent shall, at the hearing of the appeal, be allowed to argue that the case does not involve such question: Provided that nothing in this sub-section shall be deemed to take away or abridge the power of the Court to hear, for reasons to be recorded, the appeal on any other substantial question of law not formulated by it, if it is satisfied that the case involves such questions. (5) The High Court shall decide the question of law so formulated and deliver such judgment thereon containing the grounds on which such 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, by reason of a decision on such question of law as is referred to in sub-section (1). (7) Save as otherwise provided in this Act, the provisions of the Code of Civil Procedure, 1908, (5 of 1908), relating to appeals, to the High Court shall, as far as may be, apply in the case of appeals under this Section.” 5. In our considered view the order of the Appellate Tribunal dated 30[th] December, 2005 is appealable and the petitioner must pursue the remedy of appeal under section 260A of the Act of 1961. Since the order passed on the miscellaneous application is also an order in appeal, from such order of the Tribunal, the appeal will be maintainable as well. 6. We are of the view that no case for invocation of high prerogative jurisdiction is made out by-passing the statutory remedy of appeal, that too before this Court. 7. The writ petition is dismissed in limine, accordingly. This will not preclude the petitioner in challenging the impugned orders in appeal under section 260A of the Act of 1961. R. M. Lodha, CJ Kishore K. Mandal, J AMIN/-