TMI Blog1999 (10) TMI 19X X X X Extracts X X X X X X X X Extracts X X X X ..... ed senior advocate appearing for the respondents, raises a preliminary objection regarding, the maintainability of the writ petitions at Allahabad. He submits that the cause of action for instituting the writ petitions arose within the territorial jurisdiction of the Lucknow Bench of the court inasmuch as the impugned order was passed at Lucknow ; and that no part of the cause of action arose outside the jurisdiction of the Lucknow Bench of the court. Thus, according to learned counsel, the writ petitions are cognizable by the Lucknow Bench alone. Countering the submission of learned counsel for the respondents, Sri S. E. Dastur, learned senior advocate representing the petitioners, submits that the writ petitions are maintainable at Alla ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ction 142 of the Act, arose. In the writ petitions, the petitioners have prayed for the following reliefs : "(a) that this court may be pleased to issue a writ of certiorari or a writ in the nature of certiorari or any other appropriate writ, order or direction under article 226 of the Constitution of India calling for the records of the first petitioner's case and, after examining the legality and validity thereof, pass appropriate orders and directions to quash and set aside the impugned order dated January 24, 1997, being exhibit 'X' hereto ; (b) that this honourable court may be pleased to issue a writ of mandamus or a writ in the nature of mandamus or any other appropriate writ, order or direction, under article 226 of the Consti ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e issuance, of the impugned order is vitiated by total non-application of the mind to the factors precedent to the exercise of jurisdiction under section 142(2A). The petitioners submit that the sanction was granted mechanically and/or dictated by extraneous consideration and the impugned order that has been passed pursuant to the mechanical sanction must be set aside. (v) Because no reasonable person properly instructed could have ever granted his sanction to the issuance of the impugned order. The petitioners, therefore, submit that the entire proceedings are vitiated in the absence of a valid sanction and the impugned order must be set aside." A bare perusal of the grounds (u) and (v), extracted above, reveals that the main focus of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... petitioners against the impugned order. In the context of the controversy, it would be apposite to notice the provisions of sub-section (2A) of section 142 of the Act which reads as below : "(2A) If, at any stage of the proceedings before him, the Assessing Officer, having regard to the nature and complexity of the accounts of the assessee and the interests of the Revenue, is of the opinion that it is necessary so to do, be may, with the previous approval of the Chief Commissioner or Commissioner, direct the assessee to get the accounts audited by an accountant, as defined in the Explanation below sub-section (2) of section 288, nominated by the Chief Commissioner or Commissioner in this behalf and to furnish a report of such audit in ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... udited by the defined accountant. Stages (a) and (b) pertain to the mode and manner in accordance with which the Assessing Officer will exercise the power of passing the order directing the assessee to get the accounts, audited by the designated accountant. Illegality in the mode and manner of exercise of power to pass an order is a procedural illegality. It may render the order bad in law. It is the illegal order which results in pain and injury giving rise to cause of action, and not the illegality of the mode and manner of exercise of power to pass the order. At stages (a) and (b) there will be no occasion for the assessee to be aggrieved. It is at stage (c), i.e., when the order directing audit of accounts by the specified accountan ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... g these petitions. For what has been said above, the court is clearly of the opinion that the cause of action to maintain these petitions arose within the territorial jurisdiction of the Lucknow Bench of the court and that no part of the cause of action arose within the territorial jurisdiction of the court at Allahabad. The objection of the respondents regarding the maintainability of the petitions at Allahabad is upheld. In the result, the petitions are dismissed as not maintainable for want of territorial jurisdiction. However, it is clarified that dismissal of these petitions shall not preclude the petitioners from filing fresh petitions before the Lucknow Bench of the court, if there is no other impediment of law. - - Ta ..... X X X X Extracts X X X X X X X X Extracts X X X X
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