Income-tax---

----Writ---Existence of alternative remedy---Whether order of assessment to he annulled or order of remand justified---Are questions which could be examined by Tribunal in Appellate jurisdiction---Writ petition not, maintainable- -Constitution of India, Art.226.

An order of assessment was passed by the Income-tax Officer against the petitioner against which the petitioner preferred an appeal before the Commissioner of Income-tax (Appeals), who set aside the assessment order and remanded the case for passing a fresh assessment order. The petitioner filed a writ petition and contended that the Assessing Officer had repeated his earlier mistake, that ht had, violated the direction given in the earlier order of remand, that the Commissioner of Income-tax (Appeals) should have annulled the assessment proceedings instead of again remanding the matter and that the petitioner was seeking a writ of certiorari wherein the fear of alternative remedy was not attracted and the order of assessment having been framed in violation of the principles of natural justice, was liable to be quashed in exercise of the writ jurisdiction of the High Court. The Revenue raised a preliminary objection and contended that the instant case was not one where the order of assessment could be annulled, that the order of remind was justified, that it was only in. a very limited category of cases, that power to annul the assessment could be exercised by the appellate authority and that the petitioner had an alternative efficacious remedy by filing an appeal to the Tribunal and that, therefore, the writ petition was not maintainable:

Held, that whether or not the order of assessment was liable to be annulled or an order of remand as made by the Commissioner of Income-tax (Appeals) was justified, were questions, which could well be examined by the Tribunal exercising its appellate jurisdiction. Therefore, the writ petition was not maintainable.

Amritsar Sugar Mills Co. Ltd. v. Union of India (1983) AIR 1983 Delhi 337; (1983) 62 FJR 309 (Delhi); Calcutta Discount Co. Ltd. v. ITO (1961) 41 ITR 191 (SC); CIT v. Gyan Prakash Gupta (1987) 165 ITR 501 (Raj,) CIT v. Sham Lal (1981) .127 ITR 816 (P&H); Hindustan Aluminium Corporation Ltd. v. Controller of Aluminium AIR 1976 Delhi 225; ITO (Addl.) v. Ponkunnam Traders (1976) 102- ITR 366 (Ker.); Katklakshi Finance Corporation v. Union of India (1990) 47 ELT 231 Raja Jagdambika Pratap Narain Singh v. CBDT (1975) 100 ITR 698 (SC); Sant Baba Mahan Singh v. CIT (1973) 90 ITR 197 (All.) and Union of India v. Kamlakshi Finance Corporation Ltd. (1992) AIR 1992 SC 711 ref.

Wazir Singh and Mukul Gupta for Petitioner.

R. D. Jolly and Ajay Jha for Respondent.

JUDGMENT

R. C. LAHOTI, J.---The petitioner seeks to lay challenge to an order of assessment, dated March 29, 1995, passed by the Income-tax Officer, and the order dated February 21, 1997, passed by the Commissioner of Income-tax (Appeals) whereby he has set aside the assessment order, dated March 29, 1995, and sent the matter back for assessment afresh. A preliminary objection has been raised to the maintainability of the writ petition by learned senior standing counsel for the respondents submitting that an alternative efficacious remedy by way of filing an appeal to the Income-tax Appellate Tribunal is available to the petitioner and, therefore this petition is liable to be dismissed at its threshold.

Learned counsel for the petitioner has submitted that initially an order of assessment was framed on March 27, 1992, against which the petitioner preferred an appeal and the Commissioner of Income-tax (Appeals) by his order, dated August 5, 1992, set aside the assessment order remanding the same for framing afresh. The Assessing Officer has repeated his earlier mistake, also violated the direction given in the order of remand which is an act of indiscipline and judicial impropriety. He submitted that in, the facts and circumstances of the case the Commissioner of Income-tax (Appeals) should have annulled the assessment proceedings instead of directing a remand. Learned counsel also submitted that the petitioner is seeking a writ of certiorari wherein the bar of availability of alternate remedy is not attracted and the impugned order of assessment having been framed in violation of the principles of natural justice is liable to be quashed in exercise of writ jurisdiction of this Court without driving the petitioner to the necessity of pursuing the remedy of appeal under the Income-tax Act. Reliance is placed on the following decisions:

(1)Union of India v. Kamlakshi Finance Corporation Ltd. AIR 1992? SC 711.

(2) Calcutta Discount Co. Ltd. v. ITO (1961) 41 ITR 191 (SC).

(3) Kamlakshi Finance Corporation v. Union of India (1990) 4.7 ELT 231.

(4)Amritsar Sugar Mills Co. Ltd. v. Union of India AIR 1983 Delhi 337.

(5)Hindustan Aluminium Corporation Ltd. v. Controller of Aluminium, AIR 1976 Delhi 225.?????

(6)CIT v. Sham Lal (198,1) 127 ITR 816 (P&H).

(7) Addl. ITO v. Ponkunnam Traders (1976) 102 ITR 366 (Ker.).

(8) Raja Jagdambeka Pratap Narain Singh v. CBDT (1975) 100 ITR? 698 (SC).

Learned senior standing counsel for the respondent has submitted that the present one is not a case where the order of assessment can be annulled. The order of remand was justified and it is only in a very limited category of cases where the power to annul an assessment can be exercised by the appellate authority, such as one, where the assessment is void ab initio, which the order in the case at hand is certainly not. Reliance was placed on CIT v. Gyan Prakash Gupta (1987) 165 ITR 501 (Raj.) and Sant Baba Mohan Singh v. CIT (1973) 90 ITR 197 (All.).

Having heard learned counsel for the parties we are satisfied that the present one is not a case where this Court may feel persuaded to exercise its extraordinary writ jurisdiction bypassing the statutory remedy of appeal available to the petitioner. Whether or not the impugned order of assessment was liable to be annulled or an order of remand as made by the Commissioner of Income-tax (Appeals) was justified, are such questions as can very well be examined by the Tribunal exercising its appellate jurisdiction. We are not satisfied that the facts and circumstances of the case warrant exercise of writ jurisdiction of this Court allowing the petitioner liberty of bypassing the statutory remedy of appeal.

The petition is dismissed on the ground of availability of an alternative efficacious remedy of appeal before the Tribunal. The petitioner is at liberty to file the appeal and seek condonation of delay in filing the appeal praying for exclusion of time lost in prosecuting this petition under sections 5 and 14 of the Limitation Act.

M.B.A./3194/FC ??????????????????????????????????????????????????????????????????????????????? Petition dismissed.