TMI Blog2018 (2) TMI 1291X X X X Extracts X X X X X X X X Extracts X X X X ..... ner. However, there is no reason why it cannot be set right in the appeal under Section 246A by the CIT(A). It is an error, if at all within jurisdiction and not an exercise of power outside jurisdiction. The remedy they seek here can be effectively obtained from the Appellate Authority under the Act. So far the apprehension of recovery proceedings being commenced, the Petitioner can under Section 220(6) of the Act approach the Assessing Officer and thereafter the Commissioner of Income Tax as the administrative head to stay the recovery till the disposal of the appeal by the CIT(A). The relief that the Petitioners are seeking before us are reliefs which are equally available before the CIT(A). Therefore, in these circumstances, we ar ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... eof would not be available to it. This he submits is contrary to the plain reading of the provision. In support he states the Assessing Officer has refused to follow binding decision in Gurudev Siddha Peeth Vs. ITO 2015 (59) Taxmann.com 400 of the Mumbai Bench of the Tribunal. In the above case it has been held that a mixed purpose trust (both charitable and religious object) would not be hit by Section 115 BBC of the Act unless the anonymous donations made were accompanied with a specific directions that such donation is for educational and medical institution run by the Trust. Besides, two other decisions of the Tribunal have taken the same view. Mr. Ganesh submits that the Petitioner trust is a mixed purpose trust as is evident from the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... only a religious trust and on being confronted it made a claim of being a mixed purpose trust i.e. religious and charitable. Thus this issue also requires to be determined. 5. It is axiomatic that our jurisdiction under Article 226 of the Constitution of India is plenary. Therefore, there is no bar in our entertaining this Petition. However, the Courts have over a period of time evolved unwritten terms / rules to not exercise our discretion to entertain a Petition seeking a prerogative writ. One such test to decide not to exercise our discretionary writ jurisdiction is the availability of an efficacious alternate remedy under the statute in which the impugned order is passed. However, we may hasten to add that if we are of the view that ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Assessing Officer and thereafter the Commissioner of Income Tax as the administrative head to stay the recovery till the disposal of the appeal by the CIT(A). The application for stay has to be determined in terms of the parameters laid down by this Court in the KEC International Ltd. Vs. B.R. Balakrishnan 251 ITR 158. 8. The decision of the Apex Court in the case of AIRCEL (Supra) where the Supreme Court set aside the order of the High Court refusing to entertain the Petition on the ground of alternate remedy being available under the Tamil Nadu Value Added Tax Act, 2006. The Supreme Court proceeded to hold that in the issue arising therein it is not disputed that these questions are pure questions of law and could be gone into in a wr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the Petitioner does have an efficacious alternative remedy available under the Act for the same reliefs as it is seeking before us. 10. The reliance upon the decision of this Court in Bank of Baroda (Supra) was in support of its submission that the Assessing Officer is bound by the decisions of the Tribunal. This is undisputable. It is so in our hierarchical system of jurisprudence. For the purpose of entertaining the Petition in our extra ordinary jurisdiction, this decision has no application as the writ was filed from an order of the Commissioner of Income Tax under Section 264 of the Act. Admittedly, there is no appeal under the Act from an order under Section 264 of the Act. In any case, the proposition of law laid down by this Cou ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
