TMI Blog2000 (4) TMI 7X X X X Extracts X X X X X X X X Extracts X X X X ..... e assessment years 1989-90 to 1993-94, preferred by the assessees and the Income-tax Department, against the orders framed by the Commissioner of Income-tax (Appeals) dated December 27, 1996. The petitioners being of the view that there are certain mistakes, which are apparent on the face of the record/order made by the Tribunal, had filed common petitions under section 254(2) of the Income-tax Act, inter alia, seeking rectification of the mistake apparent on the face of the record and those miscellaneous petitions are rejected by the Tribunal by its common order dated July 23, 1999, on the sole ground that the petitioners are seeking a review of the order made by the Tribunal, which is Impermissible under section 254(2) of the Act. It is the correctness or otherwise of this common order made by the Tribunal, which is called in question by the petitioners before this court in these petitions filed under article 226 of the Constitution of India. Sri Madhusudhan R. Naik, learned counsel for petitioners, in support of the reliefs sought in these petitions firstly points out nearly seven so called mistakes committed by the Tribunal in its common order dated December 31, 1998, and sub ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e the case. This process consumes a lot of time before the decision on merits of the case is finalised. The limited scope of section 256(2) does not allow rendering of a final decision on the issue even where the relevant facts are available to give such a decision. The Kerala High Court in the case of CIT v. Wandoor Jupiter Chits (P.) Ltd. [1995] 213 ITR 73 has pointed out that such provisions are archaic. Similarly, after the High Court or the Supreme Court have decided on the question of law, a copy of the judgment is sent to the Registrar of the Appellate Tribunal for passing such order as necessary to dispose of the case. The above provision again contributes to delay in passing the consequential order by the Assessing Officer. The Bill proposes to provide that an appeal shall lie against the orders of the Tribunal directly to the High Court if the High Court is satisfied that the case involves a substantial question of law. The memorandum of appeal shall precisely state the substantial question of law involving the appeal and where the appeal is made by the assessee, such appeal shall be accompanied by a fee of Rs. 10,000 (Rs. 5,000 in the case of wealth-tax). Where the Hig ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... y 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." An analysis of the provision would clearly demonstrate that an appeal shall lie to the High Court from every order passed in the appeal by the Appellate Tribunal. The High Court would entertain the appeal, if it is satisfied that the case involves a substantial question of law. The appeal can be preferred both by the assessee and the Department. If the High Court is satisfied that a substantial question of law is involved, it shall formulate that question and decide the same. The High Court is further empowered under the proviso to sub-section (4) of the Act to hear the appeal on any other substantial question of law not formulated by it, if it is satisfied that the case involves such question. Sub-section (6) of the Act gives wide scope and power to the High Court to determine any issue which is not determined or has been wrongly deter ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Under such circumstances, it may not be proper for this court to interfere with the impugned orders until all statutory remedies are exhausted. At this stage it will be useful to refer to the dictum laid down by the apex court in Titaghur Paper Mills Co. Ltd. v. State of Orissa [1983] 142 ITR 663; [1983] 53 STC 315, which is as under: "Under the scheme of the Act, there is a hierarchy of authorities before which the petitioners can get adequate redress against the wrongful acts complained of. The petitioners have the right to prefer an appeal before the prescribed authority under sub-section (1) of section 23 of the Act. If the petitioners are dissatisfied with the decision in the appeal, they can prefer a further appeal to the Tribunal under sub-section (3) of section 23 of the Act and then ask for a case to be stated upon a question of law for the opinion of the High Court under section 24 of the Act. The Act provides for a complete machinery to challenge an order of assessment, and the impugned orders of assessment can only be challenged by the mode prescribed by the Act and not by a petition under article 226 of the Constitution. It is now well recognised that where a right o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... le evidence of vital nature. But, after setting aside the findings of fact on that ground the court had either to remand the matter to the first appellate court for a rehearing of the first appeal and decision in accordance with law after taking into consideration the entire relevant evidence on the records, or in the alternative to decide the case finally in accordance with the provisions of section 103(b). If in an appropriate case, the High Court decides to follow the second course, it must hear the parties fully with reference to the entire evidence on the record relevant to the issue in question and this is possible if only a proper paper book is prepared for hearing of facts and notice is given to the parties. The grounds which may be available in support of a plea that the finding of fact by the court below is vitiated in law does not by itself lead to the further conclusion that a contrary finding has to be finally arrived at on the disputed issue. On a reappraisal of the entire evidence the ultimate conclusion may go in favour of either party and it cannot be prejudged." The bar relating to alternative remedy has been a rule of self-imposed limitation rather than a rule ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... suming jurisdiction under article 226 trench upon an alternative remedy provided by statute for obtaining relief. Where it is open to the aggrieved petitioner to move another Tribunal, or even itself in another jurisdiction for obtaining redress in the manner provided by a statute, the High Court normally will not permit by entertaining a petition under article 226 of the Constitution the machinery created under the statute to be by-passed, and will leave the party applying to it to seek resort to the machinery so set up." In my opinion, since the petitioners have alternative, effective and efficacious remedy provided under the statute itself, they are not entitled to invoke the discretionary jurisdiction of this court seeking a writ to cancel the orders made by the Income-tax Appellate Tribunal in the appeals filed by them against the orders of the Commissioner of Income-tax (Appeals), Bangalore, dated December 27, 1996. Accordingly, the petitions deserve to be rejected. In the result, the petitions fail. They are dismissed. Rule discharged. Liberty is reserved to the petitioners to question the correctness or otherwise of the orders made by the Income-tax Appellate Tribunal b ..... X X X X Extracts X X X X X X X X Extracts X X X X
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