TMI Blog2021 (11) TMI 56X X X X Extracts X X X X X X X X Extracts X X X X ..... rcular dated 20th August 2018. The right to challenge the order passed by the Tribunal by way of statutory appeal has been circumscribed by the involvement of substantial questions of law to be decided by the High Court. While a High Court would normally not exercise its writ jurisdiction under Article 226 of the Constitution if an effective and efficacious alternate remedy is available, the existence of an alternate remedy does not by itself bar the High Court from exercising its jurisdiction in certain contingencies - See REGISTRAR OF TRADE MARKS, MUMBAI ORS. [ 1998 (10) TMI 510 - SUPREME COURT] . None of the exceptions as laid down by the Supreme Court in the case of Radha Krishan Industries (Supra) has been fulfilled. On an o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... dy of appeal, the Revenue has filed the present petitions invoking Article 226 of the Constitution of India contending that the tax effect involved is below monetary limits as prescribed in Central Board of Direct Taxes (hereinafter referred to as CBDT ) Circular No.17 of 2019 dated 8th August 2019 and the issue involved in the interpretation of Section has a cascading effect. 3. Since we are deciding the petitions on a preliminary point of maintainability, it is not necessary to burden the Judgment with the facts of each case. 4. Before considering the issue about the maintainability of writ petitions, it is necessary to refer to the Circulars of CBDT dated 8th August 2019, 11th July 2018 and 20th August 2018. The CBDT vide Circul ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... such as CBI / ED / DRI / SFIO / Directorate General of GST Intelligence (DGGI). (f) Cases where prosecution has been filed by the Department and is pending in the Court. 5. It is undisputed that the subject-matter of present writ petitions does not fall within any criterion prescribed in clause 10 of Circular No.3 of 2018 as amended by Circular dated 20th August 2018. 6. At this stage, it would be relevant to consider the Judgment of the Supreme Court in the case of CIT, Central-III Vs. Surya Herbal Ltd. [(2011) 15 SCC 482] wherein the Supreme Court has observed as under : 1. Delay condoned. 2. Liberty is given to the Department to move the High Court pointing out that the Circular dated 9th February, 2011, shoul ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of the three-Judge Bench would hold water and the Circular would apply even to pending matters but subject to the two caveats provided in Surya Herbal Ltd. case. 7. At this stage, it is necessary to quote para 7 of Circular No.3 of 2018 which reads as under : 7. In a case where appeal before a Tribunal or a Court is not filed only on account of the tax effect being less than the monetary limit specified above, the Pr. Commissioner of Income-tax / Commissioner of Income Tax shall specifically record that even though the decision is not acceptable, appeal is not being filed only on the consideration that the tax effect is less than the monetary limit specified in this Circular . Further, in such cases, there will be no presumption ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... burden on the Courts and Tribunal in respect of matters where tax effect is less than the limits prescribed. The Income Tax authorities who are creatures of the Income Tax Act, are bound by the directions by the CBDT in exercise of power under Section 268A(4). Even before issuing such instructions, the CBDT has been issuing such instructions where the monetary limit had been fixed. The only exceptions are the cases where there is cascading effect as laid down by the Apex Court in the case of Surya Herbal Ltd. (supra). 12. The right to challenge the order passed by the Tribunal by way of statutory appeal has been circumscribed by the involvement of substantial questions of law to be decided by the High Court. While a High Court would norm ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... (d) the vires of a legislation is challenged; (iv) An alternate remedy by itself does not divest the High Court of its powers under Article 226 of the Constitution in an appropriate case though ordinarily, a writ petition should not be entertained when an efficacious alternate remedy is provided by law; (v) When a right 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 before invoking the discretionary remedy under Article 226 of the Constitution. This rule of exhaustion of statutory remedies is a rule of policy, convenience and discretion; and (vi) In cases where there are disputed questions of fact, the High C ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
