Commissioner of Income Tax vs Income Tax Appellate Tribunal and Another

V. Ramaswami, J.—These two writ petitions are filed by the Commissioner of Income Tax praying for a writ of certiorarified mandamus

quashing the order of the Income Tax Appellate Tribunal, ""A"" Bench, Madras-34, dated May 17, 1983, in R.A. Nos. 12 and 13 (MDS) of 1983.

Those two applications are reference applications filed by the Commissioner u/s 256(1) of the Income Tax Act and praying for referring certain

questions of law said to arise out of the order of the Tribunal relating to the assessment of the second respondent in the writ petitions. The Tribunal

dismissed those applications holding that it is the Commissioner that has been given the power to ask for a reference u/s 256 of the Income Tax

Act, that the reference applications in the instant cases have been signed by a senior authorised representative for the Commissioner and that there

is nothing on record to show that the Commissioner had applied his mind for asking for a reference before the applications were filed and in that

view the applications were to be held as not maintainable.

We are at a loss to understand how the Tribunal could come to the said conclusion at all. It is true that it is the Commissioner that could invoke

the jurisdiction of the Tribunal u/s 256(1) of the Income Tax Act if he considers that the Tribunal''s decision is wrong or any question of law which

could be decided by the High Court arises out of the order of the Tribunal, but that is not to say that the Commissioner himself will have to sign the

application for a reference. The applications filed in these case showed that in the cause title, the Commissioner is shown as the applicant, the

applications start by stating that ""The applicant states as follows"" and after setting out the facts of the case and the questions of law that arise out of

the order, he has required those questions to be referred to this court for decision. Ultimately, the applications are signed by the senior

representative for the Commissioner of Income Tax, the applicant. There can be no doubt that when the senior representative signed for the

Commissioner, he was not signing in his individual capacity and he cannot be treated as an individual applicant. It is the Commissioner who has

field the applications and invoked the jurisdiction of the Tribunal u/s 256(1) of the Income Tax Act. It is not necessary for the Commissioner to

sign the application if there is an authorisation for the senior representative to sign on behalf of the Commissioner. The Tribunal, in fact, did not say

that the senior representative had no authority to sign on behalf of the Commissioner. What the Tribunal wanted is that there should be evidence to

show that the Commissioner had applied his mind on the questions arising out of the order of the Tribunal and then asked for a reference. We have

seen the applications and we have also referred to the relevant portions in them. It is seen that it is the Commissioner who applied for the

reference, it is the Commissioner who has stated the facts and set out the questions of law arising out of the order of the Tribunal and it is the

Commissioner who required the Tribunal to refer the questions set out. It should be taken, under the circumstances, that he himself has authorised

the senior representative to sign and whatever is stated in the applications, the Commissioner is bound to own. It cannot be pleaded that because

the Commissioner had no signed, the reference applications should not be attributed to the Commissioner.

We also find that a similar question came up for consideration in the decision Commissioner of Income Tax Vs. P.N.N. Bank Ltd., . In that

case, a Division Bench of this court also held that a reference application signed by the Income Tax Officer for and on behalf of the Commissioner

is valid as he is competent to do so by reason of rule 2(ii) of the Appellate Tribunal Rules and notification thereunder. As already stated, it is not

the view of the Tribunal that the senior representative who signed in this case is not authorised to sign on behalf of the Commissioner. In the

circumstances, therefore, we are unable to agree with the Tribunal that the applications are not maintainable.

It is then contended by learned counsel for the assessee-respondent that the writ petitions are not maintainable to quash the order of the Income

Tax Appellate Tribunal in reference applications. Learned counsel for the assessee was not able to draw our attention to any other alternative

remedy available to the applicant. If the Tribunal had made a grievous mistake in respect of any order, writ petitions are maintainable under article

226 of the Constitution, the High Court shall have power to issue to any person or authority, including in appropriate cases, any Government,

within its territory, directions, order or writs, including writs in the nature of habeas corpus, mandamus, prohibition, quo warrant and certiorari or

any of them for the enforcement of any of the rights conferred by Part III and for any other purpose. There can be no doubt that the Tribunal is an

authority within the meaning of this provision. Learned counsel for the assessee-respondent vaguely suggested that the order of the Tribunal is not a

quasi-judicial one and, therefore, the writ petitions could not be maintained. For one thing, we cannot agree with learned counsel that the order is

not quasi-judicial; it is an order made on the applications filed u/s 256(1) of the Income Tax Act and there can be no doubt that in exercise of the

powers under that section if the Tribunal refuses to refer the questions or dismisses the application as not maintainable, the Tribunal is acting quasi-

judicially. Even otherwise, we are unable to agree with learned counsel that only in the case of quasi-judicial orders, this court could be invoked in

writ jurisdiction. We have gone too far and even in administrative and public interest matters, the High court has interfered and there is no limitation

provided for the exercise of powers under article 226 of the Constitution. In the circumstances, therefore, we allow the writ petitions, quash the

order of the Tribunal and direct the Tribunal to consider the application on merits and dispose of the same according to law. The petitioner will be

entitled to costs of the writ petitions. Counsel''s fee Rs. 500 (one set).

In view of the decision in the writ petitions, the two tax case petitions and dismissed as premature, because the tax case petitions could be filed

only if the Tribunal refuses to refer the questions sought to be raised.