Union of India (UOI) vs Income Tax Appellate Tribunal

A.M. Sapre, J.—This is a writ petition filed by the Commissioner of Income Tax (Revenue) under Article 226 of the Constitution of India against an appellate order passed by the Income Tax Appellate Tribunal (for short hereinafter called ''Tribunal''), dated 23-5-2008 passed in ITA No. 515/Ind./ 2007, Annexure/B. By impugned appellate order, the Tribunal has allowed the appeal filed by the assessee (respondent herein).

Having heard the learned Counsel for the writ petitioner and after perusing the record of the case, we are constrained to dismiss the writ in limine.

We are at loss to understand as to why the Commissioner of Income Tax (Revenue) has chosen to file a writ petition under article 226/227 of the Constitution against an impugned appellate order of Tribunal when admittedly appeal lies against such order u/s 260A ibid before this Court.

In our view, Section 260A of the Income Tax Act is so clear in its wordings that it leaves no ambiguity of any nature whatsoever. We are constrained to make these observations because the petitioner is none other than the CIT i.e., Revenue. It is therefore, difficult to conceive that revenue was not aware of the appellate provision i.e., Section 260A for filing an appeal.

Section 260A in clear terms provides that appeal lies to High Court against every order passed by Tribunal in its appellate jurisdiction. It is not in dispute that the impugned order is an order passed by Tribunal in its appellate jurisdiction and, hence, it was only appealable u/s 260A of the Income Tax Act.

It is a well-settled principle of law consistently laid down by the Supreme Court that when a statutory right of appeal is available under any Act to an aggrieved then Article 226 cannot be allowed to be invoked and even if invoked by an aggrieved then it should be discouraged by directing an aggrieved to take recourse to filing of an appeal under the concern Act. The present case is not an exception for applying this principle against the petitioner. We are, therefore, constrained to dismiss this writ petition on the ground of availability of statutory remedy of appeal u/s 260A ibid to the petitioner. The petition, therefore, fails and is hereby dismissed in limine. As a result, interim order passed by this Court (Single Judge) dated 14-8-2008 while issuing notice of the writ is hereby recalled.