Motilal Bimalchand Jain (HUF) vs Commissioner of Income Tax and Another

A.M. Sapre, J.:

Having heard learned Counsel for the petitioner and having perused record of the case, I am of the opinion that remedy of petitioner lies in filing appeal to Tribunal u/s 254 of the IT Act, against the impugned order dt. 31st March, 2005 (Annex. P-15), passed by CIT u/s 263 of the Act. Admittedly, the impugned order is an appealable order and hence, the proper course open to petitioner in such case is to first appeal to Tribunal u/s 254 ibid and then file further appeal to this Court if occasion so arises u/s 260A of the Act. When the efficacious remedy of statutory appeal and then further statutory appeal is provided and the same can be availed of then, in that event, the writ Court should not exercise its extraordinary discretion in entertaining the writ for challenging the impugned order passed by CIT u/s 263 of the Act. Even otherwise, looking to the nature of order, and the facts involved in the case, it would be more in the interest of all parties that the Tribunal should first decide the appeal u/s 254 of the Act and invite finding on facts including legal objections sought to be raised by the petitioner in this writ. In fact, the facts involved in the case which are based on the CBI raid conducted in the residential premises of one of the members of HUF--Mr. A. Jain, Dy. Commr. of Excise/Customs wherein large amount of cash amounting to Rs. 94 lakhs and several other valuables were recovered have given rise to invocation of powers by the CIT u/s 263 of the Act for quashing the order of AO. The issue thus, involved in proceedings undoubtedly concerned the Revenue and needs to be probed in great detail on facts by the appellate Court which can examine the facts involved in great detail along with all legal issues raised by the petitioner.

Learned Counsel for the petitioner placing reliance on the decision rendered in the case reported in Whirlpool Corporation Vs. Registrar of Trade Marks, Mumbai and Others, contended that when the impugned order is totally without jurisdiction and hence, writ is maintainable. He contended that the impugned order cannot be passed by the CIT because of what he says "merger". In my view, this point can always be agitated by the petitioner in appeal along with other issues arising in appeal. What this Court in writ cannot decide, the appellate Court can always decide. It is for the reason that jurisdiction of appellate Court u/s 254 ibid is quite large and wide whereas writ Court cannot examine the facts like an appellate Court. Even the question of merger cannot be decided in isolation but needs to be decided on facts. In this view of the matter, the decision relied on by learned Counsel for petitioner may not apply to the facts of this case.

In view of aforesaid discussion, the petition is dismissed in limine. However, liberty is granted to file appeal within 15 days before Tribunal against the impugned order.