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TMI Blog2000 (4) TMI 7X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 submits that when it was brought to the notice of the Tribunal by filing an application/petition by the petitioners, the Tribunal could not have rejected the petitions solely on the ground that the petitioners are merely seeking a review of the order, which is impermissible under section 254(2) of the Act and therefore submits that since the order made is arbitrary and is in violation of the principles of natural justice, the same requi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rt 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 High Court is satisfied that a substantial question of law is involved in any case, it may itself formulate that question. The appeals shall be heard on the question so formulated. However, nothing would take away or abridge the power of the court for reasons to be recorded to hear the appeal on any other substantial questions of law if it is satisfied that the case involves such questions. The High Court may determine any issue necessary f ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 determined by the Appellate Tribunal. Sub-section (7) of the Act envisages that the provisions of the Code of Civil Procedure relating to appeals to the High Court shall as far as possible be made applicable in the case of appeals filed under section 260A of the Act. When a right or liability is created by a statute which itself prescribes the remedy or procedure for enforcing the right or liability, resort must be had to that particular statutory remedy, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s 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 or liability is created by a statute which gives a special remedy for enforcing it, the remedy provided by that statute only must be availed of. In Champalal Binani v. CIT [19701 76 ITR 692, 695; AIR 1970 SC 645, the Supreme Court has observed as under: "The Income-tax provides a complete and self-contained machinery for obtaining relief against improper action taken by the departmental authori0 ties, and normally the party feeling himself aggrieved b ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... o 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 of law. The existence of alternative remedy had always been regarded as one of the factors which this court is required to bear in mind while exercising its discretionary jurisdiction. Ordinarily, the court will not entertain a petition for a writ under article 226 of the Constitution, where the petitioner has an alternative remedy, which without being unduly onerous provides an equally efficacious remedy. The law on this point is now well settled. The Supreme ..... X X X X Extracts X X X X X X X X Extracts X X X X
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