Cit Vs. Deepak Kumar Garg - Court Judgment

Excerpt:
- constitution of india 1055. article 141; [a.k. patnaik, c.j., dipak misra, abhay gohil, s. samvatsar, & s.k. gangele, jj] dismissal of slp arising from decision of high court whether binding precedent decision of division bench in rama and company v. state of madhya pradesh, [2007(ii) mpjr 229] overruled by full bench of same high court prior to delivery of decision of full bench order passed in division bench decision assailed in slp before supreme court dismissal of slp by short reasoned order, though declaration of law, but high court is bound to follow earlier decisions in field regard being had to concept of precedents as per law laid down by apex court and larger bench decision in jabalpur bus operators association, reported in [2003(1) mpjr 158]. court clarifies that dr. jaidev siddha v. jaiprakash siddha, 2007(2) mpjr (fb) 361; air 2007 mp 269 (fb) is not impliedly overruled in view of dismissal of slp articles 226 & 227; [a.k. patnaik, c.j., dipak misra, abhay gohil, s. samvatsar, & s.k. gangele, jj] power to issue writ under article 226 - [per majority] the high courts exercise original jurisdiction under article 226 of the constitution and supervisory jurisdiction and the power of superintendence under article 227 of the constitution. but, an eloquent and fertile one, a writ of certiorari is issued in exercise of original jurisdiction. whenever word supervisory has been used in the context of article 226 it is in contrast with the appellate or revisional jurisdiction. when a writ is issued under article 226 of the constitution in respect of courts or tribunals it is done in exercise of original jurisdiction and the parameters are different than article 227 of the constitution of india. it is worth noting that the power under article 227 was there in a different manner under the government of india act. power of superintendence is distinct from the exercise of power of revisional or supervisory jurisdiction which is a facet of the power of superintendence. the confusion occurs when one applies the principle of equivalence or equates the exercise of supervisory power and power of superintendence with original or supervisory jurisdiction. there is an acceptable nuance between the concept of jurisdiction and exercise of power by certain parameters. both do come within the fundamental concept of judicial review but the jurisdiction exercised is different when under article 226 a writ is issued it is issued in exercise of original jurisdiction whether against a tribunal or inferior courts or administrative authorities. the word superintendence has not been used in article 226 of the constitution. it is also evident that the term writs is not referred to in article 227. on a scrutiny of article 227 it would be crystal clear that power of superintendence conferred on the high courts is a power that is restricted to the courts and tribunal in relation to which it exercises jurisdiction. on the contrary the power conferred on the high court under article 226 is not constricted and confined to the courts and tribunals but it extends to any person or authority. be it noted, article 226 as has been engrafted in the constitution covers entirely a new area, a broader one in a larger spectrum. when the legislature has used the terms in exercise of original jurisdiction and supervisory jurisdiction it has to be understood that they are used in contradistinction in the constitutional context as has been interpreted by the apex court. the words of the section have to be understood to mean exercise of powers under article 226 of the constitution of india which is always original. -- m.p. samaj ke kamjor vargon ke krishi bhumi hadapne sambandhi kuchakron se paritran tatha mukti adhiniyam [3/1977]. section 2: writ appeal maintainability from order of single judge-when permissible held, maintainability of a writ appeal from an order of the learned single judge would depend upon many an aspect and cannot be put into a strait jacket formula. it cannot be stated with mathematical exactitude. it would depend upon the pleadings in the writ petition, nature of the order passed by the single judge, character and the contour of the order, directions issued, nomenclature given and the jurisdictional prospective in the constitutional context are to be perceived. it cannot be said in a hyper-technical manner that an order passed in a writ petition, if there is assail to the order emerging from the inferior tribunal or subordinate courts has to be treated all the time for all purposes to be under article 227 of the constitution of india. it would depend upon the real nature of the order passed by the learned single judge. the pleadings also assume immense significance. it would not be an over emphasis to state that an order in a writ petition can fit into the subtle contour of articles 226 and 227 of the constitution in a composite manner and they can co-inside, co-exist, overlap or imbricate. in this context it is apt to note that there may be cases where the single judge may feel disposed or inclined to issue a writ to do full and complete justice because it is to be borne in mind that article 226 of the constitution is fundamentally a repository and reservoir of justice based on equity and good conscience. it will depend upon factual matrix of each case. dr. jaidev siddha v. jaiprakash siddha, 2007(2) mpjr (fb) 361: air 2007 mp 269 (fb) is not impliedly overruled in view of dismissal of slp preferred against order reported in rama and company v. state of madhya pradesh [2007 (2) mpjr 229 (db) (mp)]. - it will depend on facts of each case but commissioner must be satisfied of existence of the twin conditions, viz. in the case in hand, after hearing authorised representative, the commissioner has recorded a clear finding that the order of assessing officer was erroneous as well as prejudicial to the interest of revenue.s.k. seth, j.1. this order shall also govern the disposal of connected it appeal no. 64 of 2006 and it appeal no. 52 of 2006 as all of them are directed against the composite and common order passed by the tribunal involve common question of law between the revenue and the assessee pertaining to assessment years 1994-95, 1995-96 and 1999-2000. in all these appeals following question of law was formulated at the time of admission:whether the tribunal erred in law in setting aside the order annex. p/3 passed by the commissioner under section 263 by its order annex. p/2 on the ground that the order of the assessing officer was not erroneous or prejudicial to the interest of the revenue ?2. for the sake of convenience, facts, which lie in narrow compass, have been taken from above appeal which pertains to the assessment year 1999-2000. assessee is in the business of purchase of agricultural land and sale of developed residential plot. for assessment year assessee filed the return showing rs. 9,982 as the total income. after scrutiny, notice under section 143(2) read with section 142(1) was issued to the assessee. in response, authorised representative appeared along with documents. the assessing officer framed the assessment order on 28-3-2002 holding rs. 5,90,290 as taxable income in the hands of assessee for that assessment year. against the said order, commissioner ujjain initiated proceedings under section 263 of the income tax act, 1961 (hereinafter referred to as the act for short). accordingly notice was issued to assessee and after affording opportunity of hearing, the commissioner passed order under section 263 and after setting aside the assessment orders, remanded the case to the assessing officer for passing fresh assessment orders on merit after affording opportunity of hearing to the assessee. against the order of the commissioner assessee preferred an appeal before tribunal. said appeal was allowed by the tribunal holding that the revisional order under section 263 was uncalled for and consequently set aside the order of commissioner and restored the order of the assessing officer. it is against this order of the tribunal, revenue has come up in appeal under section 260a of the act.3. learned standing counsel for the revenue assailed the order of tribunal and submitted that assessing officer's order was erroneous and prejudicial to interest of revenue therefore, commissioner was justified in invoking revisional jurisdiction under section 263 of the act. per contra learned senior counsel appearing for the assessee supported the tribunal's order and submitted that no interference is warranted with it and appeal being devoid of substance deserves dismissal. in support of his contention learned senior counsel for the assessee placed reliance on the decision of the supreme court reported in malabar industrial co. ltd. v. cit (2000) 243 itr 83 cit v. ratlam coal ash co. (1988) 171 itr 141 kesharimal bapulal (huf) v. cit : [2001]252itr764(mp) ; cit v. qabrial india ltd. : [1993]203itr108(bom) .4. after hearing rival submissions and considering material available on record, we are of the view that the tribunal's order is unsustainable. at the outset, it is clarified that we have no quarrel with the principles laid down in the cases relied upon by the learned senior counsel for the assessee. after going through them, we can safely say that no thumb rule of universal application is evolved or laid down for the exercise of revisional power under section 263 of the act. it will depend on facts of each case but commissioner must be satisfied of existence of the twin conditions, viz. that the order of the assessing officer is erroneous and that it is prejudicial to the interest of revenue. we are also conscious of the fact that section 263 cannot be resorted to, to correct each and every type of mistake or error, unless aforesaid two elements exist in the order of assessing officer. in the case in hand, after hearing authorised representative, the commissioner has recorded a clear finding that the order of assessing officer was erroneous as well as prejudicial to the interest of revenue. from the order of the assessing officer, it is clear that for want of time, assessing officer had done only a semblance of enquiry and that too, in very slip-shod manner, as is clear from the post script in the order of assessing officer. assessing officer accepted the version of the assessee without proper enquiry as a result substantial amount of taxable income was not brought to tax. in such case assessment order would be erroneous and prejudicial to the interest of the revenue because law enjoins upon the assessing officer to make assessment order bringing all taxable income to tax. the enquiry held in a perfunctory manner could not be said to be a proper enquiry before passing the assessment order. this cannot be ground to shut out the jurisdiction of the commissioner that an adequate enquiry was conducted by the assessing officer. we may clarify that order of the commissioner is in two parts. part one consists of reasons for issuing the show cause notice, and later part deals with findings recorded by the commissioner after affording opportunity of hearing to the assessee. as stated above, commissioner has recorded a categorical finding that order of assessing officer for want of adequate enquiry, was erroneous and prejudicial to the interest of revenue and after setting aside the assessment order, remanded the matter to the assessing officer for fresh assessment on merits. the commissioner also directed assessing officer to observe rules of natural justice and to provide opportunity of hearing to assessee before making fresh assessment order on merit. this adequately safeguards the interest of the assessee and would cause no prejudice. it seems that tribunal was carried away by the first part of the order of commissioner as a result the later part of the order escaped from the notice of the tribunal and the tribunal branded the order of the commissioner as based upon probabilities, surmises and conjectures.5. in view of the foregoing discussion, we hold that tribunal erred in law in setting aside the order of the commissioner and answer the question in favour of the revenue. in the result, this appeal is allowed. let a copy of this order be retained in file and record of connected appeals. there shall be no orders as to costs.