Shashee''s Flight Kuchen vs ITO

K. Balakrishnan Nair, J.—The petitioner is aggrieved by Ext. PI assessment order for the year 1990-91 passed by the assessing authority on 3-2-1993. So, it filed an appeal against the said order. But, it was dismissed for non-prosecution. There-after, the petitioner filed an appeal before the Income Tax Appellate Tribunal. That was allowed by Ext. P3 order dated 12-8-2004 and the matter was remanded to the assessing officer to give the petitioner a chance to raise its objections and contentions. Pursuant to the said order of the appellate Tribunal, the assessing officer has now issued Ext. P4 notice. This Writ Petition is filed, challenging Exts. PI, P3 and P4. Ext. PI is no longer in force, in view of Ext. P3 appellate order. If the petitioner is aggrieved by Ext. P3, it has got a right of appeal to this Court u/s 260A of the Income Tax Act. The petitioner submits, Ext. P3 is a non-speaking order and the Tribunal has failed to consider his contention regarding lack of jurisdiction of the assessing authority to make the assessment after the period of limitation. I think, the petitioner can canvass all these grounds before the Division Bench of this Court, by filing an appeal. The contention of the petitioner that the lack of jurisdiction can be considered by this Court only, under article 226 of the Constitution of India, is ex facie, unsustainable. The appellate power is far wider than the power of this Court exercised under article 226 of the Constitution of India. This Writ Petition is, therefore, not maintainable. Accordingly, it is dismissed.