TMI Blog2004 (11) TMI 75X X X X Extracts X X X X X X X X Extracts X X X X ..... is directed to decide the appeal afresh in accordance with law - - - - - Dated:- 17-11-2004 - Judge(s) : S. K. SETH. JUDGMENT S.K. Seth J.- In this writ petition under article 226/227 of the Constitution of India, the petitioner is assailing the order dated August 22, 1997, passed by the Indore Bench of the Income-tax Appellate Tribunal in Appeal No. I.T.A./92/IND/96. By the order impugned, the Tribunal had refused to follow the earlier view taken by it. The facts relevant for the disposal of this case are as under. The petitioner is engaged in the construction work. For the assessment year 1991-92, it had filed its return. The Assessing Officer framed the assessment under section 143 and ordered the refund under section 143(1)(a) ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... objection that notice under section 143(2) was invalid and in support of his contention, the assessee relied upon the decision of the Tribunal given in its appeal for the previous year as mentioned hereinabove. The Assessing Officer vide his assessment order dated February 13, 1995, framed the assessment ignoring the earlier order of the Tribunal on the ground that the view taken by the Tribunal was not acceptable to the Department as a reference was made. The Assessing Officer thus framed the assessment under section 143(3). Against the said order, an appeal was preferred by the assessee before the Commissioner of Income-tax (Appeals), but in vain. It is also pertinent to point out that when the appeal was pending before the Commissioner ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the Tribunal. It was also pointed out by Shri Choudhary that the view taken by the Tribunal in Agrawal Warehousing and Leasing Ltd. has not been approved by this court. When a reference at the instance of the assessee was made by the Tribunal seeking the opinion of the court on the 5 questions, this court decided questions Nos. 1, 2 and 3 in favour of the assessee, but in view of the answers to questions Nos. 1, 2 and 3, declined to answer questions Nos. 4 and 5. The decision of this court in Agrawal Warehousing and Leasing Ltd. v. CIT [2002] 257 ITR 235. Question No. 2 which was framed in Agrawal Warehousing and Leasing Ltd. was as under: "(ii) Whether, on the facts and in the circumstances of the case, the Tribunal was right in not allo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... R 84, Gita Devi Aggarwal v. CIT [1970] 76 ITR 496 (SC) and Champalal Binani v. CIT [1970] 76 ITR 692 (SC). I have heard learned counsel for the parties at length. Perused the material available on the record. In the considered opinion of this court, there is no force in the submissions of Shri Jain that the writ petition should be dismissed on the ground of alternative remedy in view of the peculiar facts of the present case. In the present writ petition, a show-cause notice was issued to the respondents on December 3, 1997, on the ground that the Tribunal has committed a grave and serious miscarriage of justice. The writ petition was admitted by this court on March 5, 1998, by a bi-party order. The objection which has been raised by Shri ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e the one in the present case, it would lead to anarchy and total chaos which would be against judicial propriety and discipline. Thus, the order of the Tribunal suffers from legal infirmity which cannot be allowed to sustain. In view of the aforesaid, it would be in the fitness of things to set aside the order impugned. Accordingly, the order passed by the learned Income-tax Appellate Tribunal in I.T.A. No. 92/IND/96 relating to the assessment year 1992-93 in the appeal preferred by the petitioner-assessee is hereby set aside and the learned Income-tax Appellate Tribunal is directed to decide the appeal afresh in accordance with law within a period of three months. In view of the foregoing discussion, the writ petition is allowed. Howeve ..... X X X X Extracts X X X X X X X X Extracts X X X X
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