M/S NIDHI CORPORATION THROUGH ITS AUTHORISED SIGNATORY VASANTKUMAR UMEDBHAI PATEL V. INCOME TAX OFFICER WARD 9(1)

SCA/14756/2020

AI Insights

M/S Nidhi Corporation, through its authorized signatory, Vasantkumar Umedbhai Patel, filed a writ application under Article 226 of the Constitution of India against the Income Tax Officer Ward 9(1) and the ITAT. The application sought to quash the ITAT's order dated 18.07.2014, which dismissed the corporation's appeal for non-prosecution. The corporation had previously claimed a deduction under Section 80IB(10) of the Income Tax Act, 1961, which was disallowed by the Assessing Officer and upheld by the Commissioner of Income Tax (Appeals). The ITAT dismissed the second appeal due to the non-appearance of the corporation's representative. The High Court, after considering the arguments and the statutory framework, decided not to entertain the writ application, citing the absence of sufficient cause for the delay in filing the statutory appeal and the non-exhaustion of available statutory remedies.

• Counselvise Citation: [2022] 140 COUNSELVISE.COM (IT) 749025 (HC-GUJARAT)
• Appeal Type: Others
• Pronouncement Date: 01-02-2022
• Assessment Year: misc
• Other Referred Cases: Sanket Estate & Finance (P.) Ltd. Vs. Commissioner of Income-tax, Mahendra Saree Emporium vs. G.V. Srinivasa Murthy, Assistant Commissioner (CT) LTU, Kakinada & Ors. vs. M/s. Glaxo Smith Kline Consumer Health Care Limited, Singh Enterprises v. Commissioner of Central Excise, Jamshedpur, K.S. Rashid & Son vs. the Income Tax Investigation Commission, ITC Ltd. & Anr. Vs. Union of India, Panoli Intermediate (India) Pvt. Ltd. vs. Union of India & Ors., Electronics Corporation of India Ltd. vs. State of Andhra Pradesh, Chhabi Nath & Ors. vs. Radhey Shyam & Anr., Suryachakra Power Corporation Limited vs. Electricity Department Port Blair & Ors.
• Laws Referred To: Income Tax Act, 1961
• Result in Favour of: Revenue
• Court: HIGH COURT
• Department Lawyers: M R BHATT CO
• Assessee Lawyers: HLP ASSOCIATES LLP
• Keywords: Income tax appellate tribunal; Non-prosecution; Substantial question of law; Writ of Mandamus; Extra ordinary writ jurisdiction
• Section: 246A; 260A; 253; 80IB(10)

Judgement Text

"C/SCA/14756/2020 ORDER DATED: 01/02/2022 IN THE HIGH COURT OF GUJARAT AT AHMEDABAD R/SPECIAL CIVIL APPLICATION NO. 14756 of 2020 ============================================= M/S NIDHI CORPORATION THROUGH ITS AUTHORISED SIGNATORY VASANTKUMAR UMEDBHAI PATEL Versus INCOME TAX OFFICER WARD 9(1) ============================================= Appearance: HLP ASSOCIATES LLP(9263) for the Petitioner(s) No. 1 M R BHATT & CO.(5953) for the Respondent(s) No. 1 ============================================= CORAM: HONOURABLE MR. JUSTICE J.B.PARDIWALA and HONOURABLE MS. JUSTICE NISHA M. THAKORE Date : 01/02/2022 ORAL ORDER (PER : HONOURABLE MS. JUSTICE NISHA M. THAKORE) 1. By this writ application, the writ applicant has invoked extra ordinary writ jurisdiction of this Court under Article 226 of the Constitution of India and has prayed for the following reliefs: “(A) This Hon’ble court may be pleased to issue a writ of mandamus or any other appropriate writ in the nature of mandamus and/or an appropriate writ, order or direction, quashing and setting aside the order dated 18.07.2014 passed by the Income-T ax Appellate Tribunal, ‘A’ Bench, Ahmedabad in ITA No.874/AHD/2011; (B) This Hon’ble Court may be pleased to issue an appropriate writ, order or direction directing the Income-T ax Appellate T ribunal, Ahmedabad for hearing the Second Appeal being ITA No.874/AHD/2011, on its own merits after considering the relevant documents that are available on record; (C) Pending admission, hearing and final disposal of this petition, this Hon’ble Court may be pleased to stay the operation, execution and implementation of the order dated 18.07.2014 passed by the Income- T ax Appellate T ribunal, ‘A’ Bench, Ahmedabad in ITA No.874/AHD/2011; (D) This Hon’ble Court may be pleased to grant such other and further relief and/or order in the interest of justice in favour of the petitioner.” Page 1 of 22 C/SCA/14756/2020 ORDER DATED: 01/02/2022 2. The brief facts, which emerges from the record of the present petition, are summarized as under: 2.1 The writ applicant has filed return of income for the A.Y . 2007-08 on 31.10.2007 thereby declaring the total income as “NIL ” after claiming deduction under Section 80IB(10) of the Income T ax Act, 1961 (herein after referred to as “the Act”) amounting to Rs.25,69,952/-. The case of the writ applicant was selected for scrutiny assessment and notices in regard thereof were issued upon the writ applicant. The writ applicant had appeared before the Assessing Officer through his authorized representative in order to substantiate its claim under Section 80IB of the Act. Relevant documents in the nature of approved plan, audit report in Form – 10CCB, development permission, B.U. permission and development agreement entered into by the writ applicant with one Pravinbhai Ramdas Patel as regards the housing project, were also placed for consideration. 2.2 The Assessing Officer after examining the aforesaid documents vide order dated 24.12.2009 was pleased to disallow the entire claim of the writ applicant under Section 80IB(10) of the Act to the tune of Rs.25,69,952/-. Being aggrieved and dissatisfied with the aforesaid order of the Assessing Officer, the writ applicant had preferred an appeal under Section 246A of the Act before the Commissioner of Income T ax (Appeals) -XV, Ahmedabad. The said appeal was registered as Appeal No.CIT(A)-XV/ITO/9(1)/303/09-10. The Commissioner of Income T ax (Appeals)-XV, Ahmedabad after considering the written submissions of the writ applicant as Page 2 of 22 C/SCA/14756/2020 ORDER DATED: 01/02/2022 well as upon perusal of the record ultimately, dismissed the appeal vide order dated 25.01.2011. 2.3 The writ applicant thereafter, preferred the second appeal before the Income T ax Appellate Tribunal, ‘A’ Bench, Ahmedabad, under Section 253 of the Act. The said second appeal was registered as ITA No.874/AHD/2011. The aforesaid second appeal was heard by the Income T ax Appellate Tribunal in absence of the writ applicant as no representative of the writ applicant had remained present on the date of hearing. The ITAT vide order dated 18.07.2014 was pleased to summarily dismissed the appeal of the writ applicant-assessee. Being aggrieved and dissatisfied with the aforesaid order dated 18.07.2014 passed by the ITAT, ‘A’ Bench, Ahmedabad, the writ applicant has approached this Court by filing this writ application in the year 2020. 3. This Court upon hearing Mr. Chintan Dave, the learned counsel appearing for the writ applicant has passed the following order dated 12.01.2021, which reads as under: “1. We have heard Mr. Chintan Dave, the learned counsel appearing for the writ-applicant. 2. Mr. Dave, the learned counsel would submit that the tribunal dismissed the appeal on the ground of the non-appearance of the writ-applicant herein as well as his lawyer. He would submit that the tribunal ought not to have dismissed the appeal on the ground of non-prosecution. In this regard, Mr. Dave seeks to rely on Rule 24 of the Income T ax Rules, 1963 which makes it abundantly clear that the tribunal cannot dismiss the appeal without adverting to the merits. Even on the day on which the hearing is adjourned, the appellant chose not to appear in present or through an authorized representative. It would incumbent upon the tribunal to dispose of the appeal on merits. Mr. Dave, the learned counsel seeks to rely on the decision of this High Court in the case of Sanket Estate & Finance (P .) Ltd. Vs. Commissioner of Income-tax [2013] 32 taxmann.com 342 (Gujarat). 3. Let Notice be issued to the respondents for final disposal, returnable on 10/02/2021. On the returnable date, notify the matter on top of the board.” Page 3 of 22 C/SCA/14756/2020 ORDER DATED: 01/02/2022 4. Mr. Manish R. Bhatt, the learned Senior Counsel assisted by Mr. Munjaal Bhatt, the learned counsel, has entered his appearance on behalf of the respondent authorities. Mr. Bhatt, has vehemently objected to the maintainability of the writ application by drawing attention of this Court to the reliefs so sought for in the present writ application. Mr. Bhatt, the learned Senior Counsel has further submitted that the order under challenge is dated 18.07.2014 passed by the Appellate Tribunal dismissing the appeal of the Assessee for non- prosecution whereas the present petition is filed in the year 2021, which suffers from delay and latches. It is further submitted that against the order of ITAT, there is provision of statutory appeal under Section 260A of the Act where the writ applicant is expected to file appeal within the statutory period of limitation before this Court. However, for the reasons best known to the writ applicant, the writ applicant has preferred to invoke extra-ordinary writ jurisdiction of this Court under Article 226 of the Constitution of India. It is also submitted that even otherwise on merits also, the sole ground raised by the writ applicant in the present writ application is fallacious in as much as that the address mentioned by the assessee in the present writ application and that mentioned in the appeal memo before the Appellate Authorities is the same and as reflected from the order impugned, the same can be presumed to be communicated to the writ applicant. Thus, it is submitted that in absence of any sufficient explanation tendered by the writ applicant for the delay which has occurred in challenging the impugned order of the ITAT, the present writ application may not be entertained more particularly, when the statutory Page 4 of 22 C/SCA/14756/2020 ORDER DATED: 01/02/2022 remedy available under Section 260A of the Act itself is barred under the provisions of limitation. 7. Countering the arguments advanced by the learned counsel appearing for the department, Mr. Dave, the learned counsel appearing for the writ applicant has referred to and relied upon the decision of this Court in the case of Sanket Estate & Finance Pvt. Ltd. vs. The Commissioner of Income T ax (Supra) and has invited attention of this Court to the relevant observations made therein, which are reproduce as under: “23. In the instant case, as could be noted from the order impugned, that the Tribunal has chosen to dismiss the appeal on the ground of non-prosecution. It also noted that RPAD was sent and the same had returned with the remark of the postal department as none having claimed the same. Instead of deciding the matter on merits, it chose to dismiss the same for want of prosecution and this order in our opinion is contrary to the provision of law. 24. When the Supreme Court decided the case of Commissioner of Income-tax vs. S. Chenniappa Mudaliar(supra), no amendment in Rule in the Income-T ax Appellate Tribunal Rules was made as yet. Rule 24 of the Income T ax Rules, 1963 makes it abundantly clear that the Tribunal cannot dismiss the appeal without adverting to the merits. Even on the day on which the hearing is adjourned, the appellant chose not to appear in person or through an authorised representative. It is incumbent upon the T ribunal to dispose of the appeal on merits after hearing the respondent and afterwards if the appellant appears and satisfy the T ribunal, sufficient cause for its non-appearance on the date of hearing, the T ribunal can set aside the ex-parte order and restore the appeal. However, reliance of the Tribunal on the decision of the Delhi Bench in the case of CIT vs. Multiplan India (P) Ltd (supra) is erroneous and, therefore, requires to be set aside. In the instant case, it can be noted from the letters addressed by the present appellant to the T ribunal that it was awaiting transfer of both the appeals of 1998-99 and 1999-2000 since CIT (Appeals) had relied upon such orders of earlier years. 25. If the record of these appeals were necessary for proceedings with the appeals, which were pending of the year 2001 to 2002, 2002-03, in the instant case, it was a matter of transfer from Mumbai Bench to the Ahmedabad Bench of these appeals and the present appellant has made out sufficient cause indicating from the material placed on record that it had never abandoned the cause. On the contrary, it had consistently pursued the matters as it was having a direct bearing on the appeals of subsequent years. Even otherwise, what is the requirement of the law is of adjudication on merit even when either side or both the sides choose not to contest. In view of the aforesaid, we are of the considered view that the Tribunal erred in dismissing the appeal only on the ground of non- Page 5 of 22 C/SCA/14756/2020 ORDER DATED: 01/02/2022 prosecution without adverting to the merits of the matter and,therefore, we set aside the order impugned dated 4.8.2006 passed by the T ribunal and also remand the matter to the Tribunal to adjudicate the same on merits. Appeal is allowed accordingly.” 8. It was therefore, submitted that the Tribunal could not have dismissed the appeal for want of prosecution, without the same being decided on merits. Mr. Dave, the learned counsel appearing for the writ applicant had further submitted that in fact the writ applicant was not aware about the impugned order dated 18.07.2014 as the assessee was never served with the said order. In the peculiar facts and circumstances, the writ applicant had sufficient cause for not to approach for restoration of second appeal within the period of six months from the end of the month in which the impugned order was passed, in view of the statutory time period envisaged under the Act. At the same time, the appeal provided under Section 260A of the Act has also got time barred. The learned counsel appearing for the writ applicant had further drawn attention of this Court to the grounds raised in the petition memo and has contended that the writ applicant has tendered sufficient reasons to explain the delay which had occurred in availing the statutory remedy. It was further contended that the statutory remedy is no more available to the writ applicant in view of the bar created by virtue of period of limitation. Thus, it was contended that in absence of any statutory remedy being available to the writ applicant, the only efficacious remedy available to the writ applicant is to invoke extra-ordinary writ jurisdiction of this Court under Article 226 of the Constitution of India in order to redress grievance of the writ applicant. 9. Once again by emphasizing on the fact with regard to violation of principles of natural justice, the learned counsel Page 6 of 22 C/SCA/14756/2020 ORDER DATED: 01/02/2022 appearing for the writ applicant had submitted that writ jurisdiction of this Court is the only efficacious remedy available for the writ applicant and has therefore, prayed to entertain the writ application and to grant the reliefs so sought for. 10. At the outset, we take note of the fact about the preliminary objection raised by the learned counsel for the department as regards the maintainability of the present petition. Admittedly, the order impugned in the present writ application is dated 18.07.2014 passed by the Income T ax Appellate Tribunal, ‘A’ Bench, Ahmedabad, in exercise of powers conferred under Section 253 of the Act, it is equally true that the order impugned is dated 18.07.2014 and the writ petition has been affirmed by the writ applicant on 28.10.2020, whereby the Notice came to be issued by this Court vide order dated 12.01.2021. Hence, there is no escape to the fact that the statutory appeal provided under Section 260A of the Act before this Court is time barred as on date of filing of this writ application. In the peculiar facts and circumstances of the case, the limited issue which falls for our considertion is whether this Court in exercise of powers conferred under Article 226 of the Constitution of India can entertain the writ petition more particularly, when the efficacious statutory remedy of appeal provided under Section 260A of the Act is barred by law of limitation? 11. It would be appropriate to consider the relevant provision of law more particularly, Section 260A of the Income T ax Act. Section 260A of the Income T ax Act, reads thus: “Appeal to High Court. Page 7 of 22 C/SCA/14756/2020 ORDER DATED: 01/02/2022 (1) An appeal shall lie to the High Court from every order passed in appeal by the Appellate T ribunal before the date of establishment of the National T ax T ribunal, if the High Court is satisfied that the case involves a substantial question of law. (2) The Principal Chief Commissioner or Chief Commissioner or the Principal Commissioner or Commissioner or an assessee aggrieved by any order passed by the Appellate Tribunal may file an appeal to the High Court and such appeal under this sub-section shall be— (a) filed within one hundred and twenty days from the date on which the order appealed against is received by the assessee or the Principal Chief Commissioner or Chief Commissioner or Principal Commissioner or Commissioner; (b) [***] (c) in the form of a memorandum of appeal precisely stating therein the substantial question of law involved. (2A) The High Court may admit an appeal after the expiry of the period of one hundred and twenty days referred to in clause (a) of sub-section (2), if it is satisfied that there was sufficient cause for not filing the same within that period. (3) Where the High Court is satisfied that a substantial question of law is involved in any case, it shall formulate that question. (4) The appeal shall be heard only on the question so formulated, and the respondents shall, at the hearing of the appeal, be allowed to argue that the case does not involve such question : Provided that nothing in this sub-section shall be deemed to take away or abridge the power of the court to hear, for reasons to be recorded, the appeal on any other substantial question of law not formulated by it, if it is satisfied that the case involves such question. (5) The High Court shall decide the question of law so formulated and deliver such judgment thereon containing the grounds on which such decision is founded and may award such cost as it deems fit. (6) The High Court may determine any issue which— (a) has not been determined by the Appellate T ribunal; or (b) has been wrongly determined by the Appellate Tribunal, by reason of a decision on such question of law as is referred to in sub-section (1). (7) Save as otherwise provided in this Act, the provisions of the Code of Civil Procedure, 1908 (5 of 1908), relating to appeals to the High Court shall, as far as may be, apply in the case of appeals under this section.” 12. Thus, Section 260A of the Act pertains to the statutory appeal provided before this Court from every order passed in appeal by the T ribunal. On interpretation of Section 260A of the Act, it is evident that High Court is conferred with jurisdiction to admit if, the High Court is satisfied that the case involves substantial question of law. The bare reading of sub section (2) Page 8 of 22 C/SCA/14756/2020 ORDER DATED: 01/02/2022 (a) of Section 260 implies the period of limitation of 120 days for filing an appeal before this Court against the every order passed in appeal by the Tribunal. The said statutory provision itself makes it clear that the appeal shall be filed within 120 days from the date on which the order appeal against is received by the assessee. Thus, the receipt of certified copy of the order of the Tribunal would trigger the commencement of limitation period under Section 260A(2)(a) of the Act. The further analysis of the aforesaid provision confers powers upon High Court to admit an appeal after the expiry of period of 120 days. Undoubtedly, the Income T ax Act being a Special Act expressly provides in Section 260A the special period of limitation as the legislature intended to be a complete Code by itself, which alone should govern the matters pertaining to the special statute. Thus, the scheme of the Act is suggestive of the fact that the time limit is prescribed under Section 260A of the Act to file an appeal before the High Court and the limitation can be extended by the Court by invoking the provisions of Section 5 of the Limitation Act, 1963. 13. At this juncture, it would also be necessary to look into the expression ‘received by the assessee’. If there is delay in filing an appeal to the High Court under Section 260A, the reasons offered has to be essentially analysed in the facts of each case and cannot be cast in a rigid mode. It is true that an explanation offered by the assessee must be construed in a liberal manner so as to ensure that an otherwise genuine cause of justice is not defeated by adherence to technical precedence. Page 9 of 22 C/SCA/14756/2020 ORDER DATED: 01/02/2022 14. In the case on hand, the assessee has challenged the order passed by the Tribunal dated 18.07.2014 whereby the Tribunal has choose to not to entertain the second appeal preferred by the writ applicant-assessee by summarily rejecting for want of prosecution. However, we cannot obviate of the fact that the matter on hand is to be considered in exercise of powers conferred under Article 226 of the Constitution of India and not in statutory appeal as provided under Section 260A of the Act. 15. At this juncture, we would like to refer to the observations made by the Coordinate Bench of this Court in the case of Panoli Intermediate (India) Pvt. Ltd. vs. Union of India and Others, reported in (2016) GLH (2) 337. The Division Bench of this Court had formulated the following questions of law and had referred the matter to the larger Bench. 16. The larger Bench of this Court after taking into consideration the various decisions of the Hon’ble Apex Court on the issue on hand observed as under: “22. In order to appreciate the contentions raised by the respective sides, it would be appropriate to first consider the scope and ambit of the power under Article 226 of the Constitution. As such, the question is no more res integra when the jurisdiction of the High Court to entertain the petition for writ of certiorari under Article 226 of the constitution or power of superintendence under Article 227 of the Constitution against the orders are to be considered. It can hardly be disputed that the power of this Court under Articles 226 and 227 of the Constitution are conferred by the Constitution and cannot be diluted or nullified by any statute or legislation. At this stage, useful reference can be made to the decision of the Apex Court in the case of Surya Dev Rai V. Ram Chander Rai (2003) 6 SCC 675 wherein the question came up for consideration before the Apex Court as to whether the amendment made in the Code of Civil Procedure under section 115 would in any manner affect the jurisdiction under Articles 226 and 227 of the Constitution. The Apex Court in the said decision, after considering various decisions, concluded at para 38 as under: Page 10 of 22 C/SCA/14756/2020 ORDER DATED: 01/02/2022 “38. Such like matters frequently arise before the High Courts. We sum up our conclusions in a nutshell, even at the risk of repetition and state the same as hereunder :- (1) Amendment by Act No.46 of 1999 with effect from 01.07.2002 in Section 115 of Code of Civil Procedure cannot and does not affect in any manner the jurisdiction of the High Court under Articles 226 and 227 of the Constitution. (2) Interlocutory orders, passed by the courts subordinate to the High Court, against which remedy of revision has been excluded by the CPC Amendment Act No. 46 of 1999 are nevertheless open to challenge in, and continue to be subject to, certiorari and supervisory jurisdiction of the High Court. (3) Certiorari, under Article 226 of the Constitution, is issued for correcting gross errors of jurisdiction, i.e., when a subordinate court is found to have acted (i) without jurisdiction - by assuming jurisdiction where there exists none, or (ii) in excess of its jurisdiction – by overstepping or crossing the limits of jurisdiction, or (iii) acting in flagrant disregard of law or the rules of procedure or acting in violation of principles of natural justice where there is no procedure specified, and thereby occasioning failure of justice. (4) Supervisory jurisdiction under Article 227 of the Constitution is exercised for keeping the subordinate courts within the bounds of their jurisdiction. When the subordinate Court has assumed a jurisdiction which it does not have or has failed to exercise a jurisdiction which it does have or the jurisdiction though available is being exercised by the Court in a manner not permitted by law and failure of justice or grave injustice has occasioned thereby, the High Court may step in to exercise its supervisory jurisdiction. (5) Be it a writ of certiorari or the exercise of supervisory jurisdiction, none is available to correct mere errors of fact or of law unless the following requirements are satisfied : (i) the error is manifest and apparent on the face of the proceedings such as when it is based on clear ignorance or utter disregard of the provisions of law, and (iii) a grave injustice or gross failure of justice has occasioned thereby. (6) A patent error is an error which is self- evident, i.e., which can be perceived or demonstrated without involving into any lengthy or complicated argument or a long drawn process of reasoning. Where two inferences are reasonably possible and the subordinate court has chosen to take one view the error cannot be called gross or patent. Page 11 of 22 C/SCA/14756/2020 ORDER DATED: 01/02/2022 (7) The power to issue a writ of certiorari and the supervisory jurisdiction are to be exercised sparingly and only in appropriate cases where the judicial conscience of the High Court dictates it to act lest a gross failure of justice or grave injustice should occasion. Care, caution and circumspection need to be exercised, when any of the abovesaid two jurisdictions is sought to be invoked during the pendency of any suit or proceedings in a subordinate court and the error though calling for correction is yet capable of being corrected at the conclusion of the proceedings in an appeal or revision preferred there against and entertaining a petition invoking certiorari or supervisory jurisdiction of High Court would obstruct the smooth flow and/or early disposal of the suit or proceedings. The High Court may feel inclined to intervene where the error is such, as, if not corrected at that very moment, may become incapable of correction at a later stage and refusal to intervene would result in travesty of justice or where such refusal itself would result in prolonging of the lis. (8) The High Court in exercise of certiorari or supervisory jurisdiction will not covert itself into a Court of Appeal and indulge in re-appreciation or evaluation of evidence or correct errors in drawing inferences or correct errors of mere formal or technical character. (9) In practice, the parameters for exercising jurisdiction to issue a writ of certiorari and those calling for exercise of supervisory jurisdiction are almost similar and the width of jurisdiction exercised by the High Courts in India unlike English courts has almost obliterated the distinction between the two jurisdictions. While exercising jurisdiction to issue a writ of certiorari the High Court may annul or set aside the act, order or proceedings of the subordinate courts but cannot substitute its own decision in place thereof. In exercise of supervisory jurisdiction the High Court may not only give suitable directions so as to guide the subordinate court as to the manner in which it would act or proceed thereafter or afresh, the High Court may in appropriate cases itself make an order in supersession or substitution of the order of the subordinate court as the court should have made in the facts and circumstances of the case. Though we have tried to lay down broad principles and working rules, the fact remains that the parameters for exercise of jurisdiction under Articles 226 or 227 of the Constitution cannot be tied down in a straitjacket formula or rigid rules. Not less than often the High Court would be faced with dilemma. If it intervenes in pending proceedings there is bound to be delay in termination of proceedings. If it does not intervene, the error of the moment may earn immunity from correction. The facts and circumstances of a given case may make it more appropriate for the High Court to exercise self- restraint and not to intervene because the error of jurisdiction though committed is yet capable of being taken care of and corrected at a later stage and the wrong done, if any, would Page 12 of 22 C/SCA/14756/2020 ORDER DATED: 01/02/2022 be set right and rights and equities adjusted in appeal or revision preferred at the conclusion of the proceedings. But there may be cases where 'a stitch in time would save nine'. At the end, we may sum up by saying that the power is there but the exercise is discretionary which will be governed solely by the dictates of judicial conscience enriched by judicial experience and practical wisdom of the Judge.” 23. The aforesaid decision was considered by the Apex Court in the case of Mahendra Saree Emporium vs. G.V. Srinivasa Murthy reported at (2005) 1 SCC 481, wherein while considering the aspects as to whether any legislation subordinate to the Constitution can whittle down the power under the Constitution of the Apex Court under Article 226 of the Constitution. It was held that any legislation subordinate to the Constitution cannot whittle down the jurisdiction and power conferred on the constitutional courts of the country. 24. Once again, in the case of Salem Advocate Bar Association, T.N. vs. Union of India reported at (2005) 6 SCC 344, the question arose before the Apex Court was as to whether amendment made under section 115 of the Code of Civil Procedure would take away the constitutional jurisdiction of the High Court or not. It was held by the Apex Court after considering the earlier decision of the Apex Court in the case of Surya Dev Rai (supra) that curtailment of revisional jurisdiction of the High Court under Section 115 of the Code of Civil Procedure does not take away and could not have taken away the constitutional jurisdiction of the High Court. But it was also further held that the power exists, untrammelled by the amendment in Section 115 and is available to be exercised subject to rules of self-discipline and practice which are as well settled. 25. Recently, the decision of the Apex Court in the case of Surya Dev Rai (supra) as was referred to the Larger Bench, on the point as to whether the order of the Civil Court was amenable to the writ jurisdiction under Article 226 of the Constitution or not, and the Larger Bench of the Apex Court in the case of Radhey Shyam & Anr. Vs. Chhabi Nath & Ors. in Civil Appeal No.2548/09 vide its decision dated 26.02.2015, overruled the decision of the Apex Court in the case of Surya Dev Rai (supra), but only the to the extent that the judicial orders of the Civil Court are not amenable to the writ jurisdiction under Article 226 of the Constitution and it was held that the jurisdiction under Article 227 of the Constitution is distinct from the jurisdiction under Article 226 of the Constitution. However, the pertinent aspect is that the earlier view taken by the Apex Court in the case of Surya Devi Rai (supra) and Mahendra Saree Emporium (supra) and Salem Advocate Bar Association (supra) that no legislation subordinate to the constitution can whittle down the jurisdiction conferred by the Constitution has been reiterated. 26. The aforesaid discussion would go to show that no legislation including section 35 of the Act can whittle down or dilute or nullify the power of the constitutional court under Article 226 of the Constitution but the parameter for exercise of the writ of certiorari would be in a case where the T ribunal or the authority has acted without jurisdiction or in excess of jurisdiction or acted in flagrant disregard of the Page 13 of 22 C/SCA/14756/2020 ORDER DATED: 01/02/2022 law or the rules of procedure or have acted in violation to the principles of natural justice and thereby, resulting into failure of justice. The certiorari jurisdiction may be exercised when the error if not corrected at the very moment may become incapable of correction at the later stage and refusal to intervene would result travesty of justice. But the jurisdiction of writ of certiorari should not be converted into the court of appeal or indulge into re-appreciation of the evidence or evaluation of the evidence or correction of the errors were two views are possible. The High Court while exercising the jurisdiction of writ of certiorari may annul or set aside the act or set aside the proceeding, but cannot substitute its own decision in place thereof. The High Court while exercising the power has to apply self restraint. It was well summed up by the Apex Court in the case of Surya Dev Rai (supra) that the power is there but the exercise is discretionary which will be solely governed by the dictate of the judicial conscience, enriched by judicial experience and practical wisdom of the Judge. 27. The aforesaid discussion goes to show that it is not possible to observe that in a case where the limitation period of preferring appeal or further period of condonation of delay is over, the High Court will have no jurisdiction under Article 226 of the Constitution but the exercise of such power has to be in exceptional cases where gross injustice is satisfactorily demonstrated. Otherwise, in normal circumstances, the High Court would give appropriate weightage to the statutory provisions because the things which cannot be done directly as per the statute can not be permitted to be done indirectly in writ jurisdiction unless a grave and strong case is made out before the High Court that noninterference to the order under challenge would result into a gross injustice to the party suffering the order. 28. In the decision of the Apex Court in the case of Singh Enterprises v. Commissioner of Central Excise, Jamshedpur reported at 2008 221 ELT 163 (SC), which has been relied upon by the learned counsel Mr. Parikh, the Apex Court was considering the scope and ambit of sufficient cause found in the various statutes and thereby to consider to give the effect of the statutory provision made for limitation. In the said case, the question as to whether the provisions of section 35 of the Act affects the jurisdiction of the High Court under Article 226 of the Constitution for exercise of the constitutional power or not was not considered by the Apex Court. Therefore, the contention of the learned counsel Mr.Parikh that the decision of the High Court taking the view that it had no power to condone the delay after the expiry of the period of 30 days should mean that the High Court will have no jurisdiction under Article 226 in a case where the period of 30 days is over cannot be countenanced for the simple reason that whether the High Court should exercise the power to condone the delay after expiry of the period of 30 days while exercising the power under Article 226 of the Constitution is one thing, but whether the jurisdiction of the High Court under Article 226 of the Constitution is affected by the statutory provision of section 35 of the Act is another thing. It cannot be disputed if the High Court declines to exercise the power after the expiry of the period of 30 days if the case is not falling in the exceptional circumstance where gross injustice is Page 14 of 22 C/SCA/14756/2020 ORDER DATED: 01/02/2022 not satisfactorily demonstrated before the High Court. Hence, the said decision is of no help to Mr. Parikh for canvassing his contention. 29. In none of the decisions upon which the reliance has been placed by Mr.Parikh, the question was examined as to whether the statutory provision under section 35 of the Act affects the jurisdiction of the High Court under Article 226 of the Constitution or not and therefore, we do not find that the said decisions are of any help to Mr.Parikh. At the same time, there is considerable force in the contention of Mr.Parikh that even while exercising the power under Article 226 of the Constitution, the High Court would normally go by the statutory provision. But such contention can be accepted in normal circumstances unless the High Court finds that there is extraordinary case satisfactorily demonstrated before it of grave injustice or non interference by the High Court would result into gross injustice. 30. We may now proceed to answer the question : (1) Question No.1 is answered in negative by observing that the limitation provided under section 35 of the Act cannot be condoned in filing the appeal beyond the period of 30 days as provided by the proviso nor the appeal can be filed beyond the period of 90 days. (2) The second question is answered in negative to the extent that the petition under Article 226 of the Constitution would not lie for the purpose of condonation of delay in filing the appeal. (3) On the third question, the answer is in affirmative, but with the clarification that: A) The petition under Article 226 of the Constitution can be preferred for challenging the order passed by the original adjudicating authority in following circumstances that A.1) The authority has passed the order without jurisdiction and by assuming jurisdiction which there exist none, or A.2) Has exercised the power in excess of the jurisdiction and by overstepping or crossing the limits of jurisdiction, or A.3) Has acted in flagrant disregard to law or rules or procedure or acted in violation of principles of natural justice where no procedure is specified. B) Resultantly, there is failure of justice or it has resulted into gross injustice. We may also sum up by saying that the power is there even in aforesaid circumstances, but the exercise is discretionary which will be governed solely by the dictates of the judicial conscience enriched by judicial experience and practical wisdom of the judge.” Page 15 of 22 C/SCA/14756/2020 ORDER DATED: 01/02/2022 17. The aforesaid decision of the larger bench came up for consideration before the Supreme Court of India in the case of Assistant Commissioner (CT) LTU, Kakinada & Ors. vs. M/s. Glaxo Smith Kline Consumer Health Care Limited reported in AIR 2020 SC 2819. The Supreme Court in the backdrop of the facts in the said matter, examined the question as to “ whether the High Court in exercise of its writ jurisdiction under Article 226 of the Constitution of India ought to have entertain a challenge to the assessment order on the sole ground that the statutory remedy of appeal against that order stood foreclosed by the law of limitation” . The relevant observations of the Supreme Court in the aforesaid matter is reproduce as under: “11. In the backdrop of these facts, the central question is: whether the High Court ought to have entertained the writ petition filed by the respondent? As regards the power of the High Court to issue directions, orders or writs in exercise of its jurisdiction under Article 226 of the Constitution of India, the same is no more res integra. Even though the High Court can entertain a writ petition against any order or direction passed/action taken by the State under Article 226 of the Constitution, it ought not to do so as a matter of course when the aggrieved person could have availed of an effective alternative remedy in the manner prescribed by law (see Baburam Prakash Chandra Maheshwari vs. Antarim Zila Parishad now Zila Parishad, Muzaffarnagar8 and also Nivedita Sharma vs. Cellular Operators Association of India & Ors.9). In Thansingh Nathmal & Ors. vs. Superintendent of T axes, Dhubri & Ors.10, the Constitution Bench of this Court made it amply clear that although the power of the High Court under Article 226 of the Constitution is very wide, the Court must exercise self-imposed restraint and not entertain the writ petition, if an alternative effective remedy is available to the aggrieved person. In paragraph 7, the Court observed thus: “7. Against the order of the Commissioner an order for reference could have been claimed if the appellants satisfied the Commissioner or the High Court that a question of law arose out of the order. But the procedure provided by the Act to invoke the jurisdiction of the High Court was bypassed, the appellants moved the High Court challenging the competence of the Provincial Legislature to extend the concept of sale, and invoked the extraordinary jurisdiction of the High Court under Article 226 and sought to reopen the decision of the T axing Authorities on question of fact. The jurisdiction of the High Court under Article 226 of the Constitution is couched in wide terms and the exercise thereof is not subject to any restrictions except the territorial restrictions which are expressly provided in the Articles. But the exercise of the jurisdiction is discretionary: it is not exercised merely because Page 16 of 22 C/SCA/14756/2020 ORDER DATED: 01/02/2022 it is lawful to do so. The very amplitude of the jurisdiction demands that it will ordinarily be exercised subject to certain self-imposed limitations. Resort that jurisdiction is not intended as an alternative remedy for relief which may be obtained in a suit or other mode prescribed by statute. Ordinarily the Court will not entertain a petition for a writ under Article 226, where the petitioner has an alternative remedy, which without being unduly onerous, provides an equally efficacious remedy. Again the High Court does not generally enter upon a determination of questions which demand an elaborate examination of evidence to establish the right to enforce which the writ is claimed. The High Court does not therefore act as a court of appeal against the decision of a court or tribunal, to correct errors of fact, and does not by assuming jurisdiction under Article 226 trench upon an alternative remedy provided by statute for obtaining relief. Where it is open to the aggrieved petitioner to move another tribunal, or even itself in another jurisdiction for obtaining redress in the manner provided by a statute, the High Court normally will not permit by entertaining a petition under Article 226 of the Constitution the machinery created under the statute to be bypassed, and will leave the party applying to it to seek resort to the machinery so set up.” We may usefully refer to the exposition of this Court in Titaghur Paper Mills Co. Ltd. & Anr. Vs. State of Orissa & Ors. 11, wherein it is observed that where a right or liability is created by a statute, which gives a special remedy for enforcing it, the remedy provided by that statute must only be availed of. In paragraph 11, the Court observed thus: 11. Under the scheme of the Act, there is a hierarchy of authorities before which the petitioners can get adequate redress against the wrongful acts complained of. The petitioners have the right to prefer an appeal before the Prescribed Authority under sub-section (1) of Section 23 of the Act. If the petitioners are dissatisfied with the decision in the appeal, they can prefer a further appeal to the T ribunal under sub-section (3) of Section 23 of the Act, and then ask for a case to be stated upon a question of law for the opinion of the High Court under Section 24 of the Act. The Act provides for a complete machinery to challenge an order of assessment, and the impugned orders of assessment can only be challenged by the mode prescribed by the Act and not by a petition under Article 226 of the Constitution. It is now well recognised that where a right or liability is created by a statute which gives a special remedy for enforcing it, the remedy provided by that statute only must be availed of. This rule was stated with great clarity by Willes, J. in Wolverhampton New Waterworks Co. v. Hawkesford [(1859) 6 CBNS 336, 356] in the following passage: There are three classes of cases in which a liability may be established founded upon statute. . . . But there is a third class, viz. where a liability not existing at common law is created by a statute which at the same time gives a special and particular remedy for enforcing it…. The remedy provided by the statute must be followed, and it is not competent to the party to pursue the course Page 17 of 22 C/SCA/14756/2020 ORDER DATED: 01/02/2022 applicable to cases of the second class. The form given by the statute must be adopted and adhered to. The rule laid down in this passage was approved by the House of Lords in Neville v. London Express Newspapers Ltd. (1919 AC 368) and has been reaffirmed by the Privy Council in Attorney-General of T rinidad and T obago v. Gordon Grant & Co. Ltd. (1935 AC 532) and Secretary of State v. Mask & Co. (AIR 1940 PC 105). It has also been held to be equally applicable to enforcement of rights, and has been followed by this Court throughout. The High Court was therefore justified in dismissing the writ petitions in limine. In the subsequent decision in Mafatlal Industries Ltd. & Ors. vs. Union of India & Ors.12, this Court went on to observe that an Act cannot bar and curtail remedy under Article 226 or 32 of the Constitution. The Court, however, added a word of caution and expounded that the constitutional Court would certainly take note of the legislative intent manifested in the provisions of the Act and would exercise its jurisdiction consistent with the provisions of the enactment. T o put it differently, the fact that the High Court has wide jurisdiction under Article 226 of the Constitution, does not mean that it can disregard the substantive provisions of a statute and pass orders which can be settled only through a mechanism prescribed by the statute. 12. Indubitably, the powers of the High Court under Article 226 of the Constitution are wide, but certainly not wider than the plenary powers bestowed on this Court under Article 142 of the Constitution. Article 142 is a conglomeration and repository of the entire judicial powers under the Constitution, to do complete justice to the parties. Even while exercising that power, this Court is required to bear in mind the legislative intent and not to 12 (1997) 5 SCC 536 render the statutory provision otiose. In a recent decision of a three-Judge Bench of this Court in Oil and Natural Gas Corporation Limited vs. Gujarat Energy Transmission Corporation Limited & Ors.13, the statutory appeal filed before this Court was barred by 71 days and the maximum time limit for condoning the delay in terms of Section 125 of the Electricity Act, 2003 was only 60 days. In other words, the appeal was presented beyond the condonable period of 60 days. As a result, this Court could not have condoned the delay of 71 days. Notably, while admitting the appeal, the Court had condoned the delay in filing the appeal. However, at the final hearing of the appeal, an objection regarding appeal being barred by limitation was allowed to be raised being a jurisdictional issue and while dealing with the said objection, the Court referred to the decisions in Singh Enterprises vs. Commissioner of Central Excise, Jamshedpur & Ors., Commissioner of Customs and Central Excise vs. Hongo India Private Limited & Anr. Chhattisgarh State Electricity Board vs. Central Electricity Regulatory Commission & Ors. and Suryachakra Power Corporation Limited vs. Electricity Department represented by its Superintending Engineer, Port Blair & Ors.17 and concluded that Section 5 of the Limitation Act, 1963 cannot be invoked by the Court for maintaining an appeal beyond maximum prescribed period in Section 125 of the Electricity Act. 13. The principle underlying the dictum in this decision would apply proprio vigore to Section 31 of the 2005 Act including to the powers of the High Court under Article 226 of the Constitution. Notably, in this decision, a submission was canvassed by the assessee that in the peculiar facts of that case (as urged in the Page 18 of 22 C/SCA/14756/2020 ORDER DATED: 01/02/2022 present case), the Court may exercise its jurisdiction under Article 142 of the Constitution, so that complete justice can be done. This argument has been considered and plainly rejected in the following words: “12. In A.R. Antulay v. R.S. Nayak, (1988) 2 SCC 602, while explicating and elaborating the principles under Article 142, Sabyasachi Mukharji, J. (as his Lordship then was) opined thus: (SCC p. 656, para 50) “50. … The fact that the rule was discretionary did not alter the position. Though Article 142(1) empowers the Supreme Court to pass any order to do complete justice between the parties, the 16 (2010) 5 SCC 23 17 (2016) 16 SCC 152 court cannot make an order inconsistent with the fundamental rights guaranteed by Part III of the Constitution. No question of inconsistency between Article 142(1) and Article 32 arose. Gajendragadkar, J., speaking [Prem Chand Garg v. Excise Commr., AIR 1963 SC 996] for the majority of the Judges of this Court said that Article 142(1) did not confer any power on this Court to contravene the provisions of Article 32 of the Constitution. Nor did Article 145 confer power upon this Court to make rules, empowering it to contravene the provisions of the fundamental right. At AIR pp. 1002-03, para 12 : SCR p. 899 of the Report, Gajendragadkar, J., reiterated that the powers of this Court are no doubt very wide and they are intended and “will always be exercised in the interests of justice”. But that is not to say that an order can be made by this Court which is inconsistent with the fundamental rights guaranteed by Part III of the Constitution. It was emphasised that an order which this Court could make in order to do complete justice between the parties, must not only be consistent with the fundamental rights guaranteed by the Constitution, but it cannot even be inconsistent with the substantive provisions of the relevant statutory laws. The court therefore, held that it was not possible to hold that Article 142(1) conferred upon this Court powers which could contravene the provisions of Article 32.” 14. A priori, we have no hesitation in taking the view that what this Court cannot do in exercise of its plenary powers under Article 142 of the Constitution, it is unfathomable as to how the High Court can take a different approach in the matter in 18 (2016) 1 SCC 315 reference to Article 226 of the Constitution. The principle underlying the rejection of such argument by this Court would apply on all fours to the exercise of power by the High Court under Article 226 of the Constitution. 15. We may now revert to the Full Bench decision of the Andhra Pradesh High Court in Electronics Corporation of India Ltd. (supra), which had adopted the view taken by the Full Bench of the Gujarat High Court in Panoli Intermediate (India) Pvt. Ltd. vs. Union of India & Ors. and also of the Karnataka High Court in Phoenix Plasts Company vs. Commissioner of Central Excise (Appeal-I), Bangalore20. The logic applied in these decisions proceeds on fallacious premise. For, these decisions are premised on the logic that provision such as Section 31 of the 1995 Act, cannot curtail the jurisdiction of the High Court under Articles 226 and 227 of the Constitution. This approach is faulty. It is not a matter of taking away the jurisdiction of the High Court. In a given case, the assessee may approach the High Court before the statutory period of appeal expires to challenge the assessment order by way of writ petition on the ground that the Page 19 of 22 C/SCA/14756/2020 ORDER DATED: 01/02/2022 same is without jurisdiction or passed in excess of jurisdiction-by overstepping or crossing the limits of jurisdiction including in flagrant disregard of law and rules of procedure or in violation of principles of natural justice, where no procedure is specified. The High Court may accede to such a challenge and can also non-suit the petitioner on the ground that alternative efficacious remedy is available and that be invoked by the writ petitioner. However, if the writ petitioner choses to approach the High Court after expiry of the maximum limitation period of 60 days prescribed under Section 31 of the 2005 Act, the High Court cannot disregard the statutory period for redressal of the grievance and entertain the writ petition of such a party as a matter of course. Doing so would be in the teeth of the principle underlying the dictum of a three-Judge Bench of this Court in Oil and Natural Gas Corporation Limited (supra). In other words, the fact that the High Court has wide powers, does not mean that it would issue a writ which may be inconsistent with the legislative intent regarding the dispensation explicitly prescribed under Section 31 of the 2005 Act. That would render the legislative scheme and intention behind the stated provision otiose. 16. The respondent had relied on the decision of this Court in K.S. Rashid & Son vs. the Income T ax Investigation Commission. This decision of the Constitution Bench, no doubt, deals with the extent of power of the High Court under Article 226 of the Constitution and the situation when the High Court can refuse to exercise its discretion, such as when alternative efficacious remedy is available to the aggrieved party. In paragraph 4 (last paragraph) of this decision, however, the Court plainly noted that it was not necessary to express any final opinion on the question as to whether Section 8(5) of the T axation on Income (Investigation Commission) Act, 1947 (Act XXX of 1947) is to be regarded as providing the only remedy available to the aggrieved party and that it excludes altogether the remedy provided for under Article 226 of the Constitution. 17. Reliance was then placed on a three-Judge Bench decision of this Court in ITC Ltd. & Anr. Vs. Union of India22. In that case, the High Court had dismissed the writ petition on the ground that the petitioner therein had an adequate alternative remedy by way of an appeal under Section 35 of the Central Excise Act. Concededly, this Court was pleased to uphold that opinion of the High Court. However, whilst considering the difficulty expressed by the petitioner therein that the statutory remedy of appeal had now become time barred during the pendency of the proceedings before the High Court and before this Court, the Court permitted the petitioner therein to resort to remedy of statutory appeal and directed the appellate authority to decide the appeal on merits. This obviously was done on the basis of concession given by the counsel appearing for the Revenue as noted in paragraph 2(1) of the order, which reads thus: “2. The High Court has dismissed the writ petition filed by the petitioner on the ground that there is an adequate alternative remedy by way of an appeal under Section 35 of the Central Excise Act. Learned counsel for the petitioner submits that the petitioner will face certain difficulties in pursuing this remedy: (1) This remedy may not be any longer available to it because the appeal has to be filed within a period of three months from the date of the assessment order and delay can be condoned only to the extent of three more months by the Collector under Section 35 of the Act. It is pointed out that the petitioner did not file an appeal because the Collector (Appeal) at Madras had Page 20 of 22 C/SCA/14756/2020 ORDER DATED: 01/02/2022 taken a view in a similar matter that an appeal was not maintainable. That apart, the petitioner in view of the huge demand involved filed a writ petition and so did not file an appeal. In the circumstances of the case, we are of the opinion that the ends of justice will be met if we permit the petitioner to file a belated appeal within one month from today with an application for condonation of delay, whereon the appeal may be entertained. Learned counsel for the Revenue has stated before us that the Revenue will not object to the entertainment of the appeal on the ground that it is barred by time. In view of this direction and concession, the petitioner will have an effective alternative remedy by way of an appeal. In that case, it appears that the writ petition was filed within statutory period and legal remedy was being pursued in good faith by the assessee (appellant).” 18. Thus, in view of the aforesaid legal position, this Court finds that the decision of the larger Bench of this Court in the case of Panoli Intermediate (India) Pvt. Ltd. (Supra) is the decision which the Supreme Court found it to have been decided on fallacious premises. In other words, the Supreme Court has held that once an efficacious alternative remedy by way of statutory appeal as provided under the special enactment and the assessee having failed to avail that statutory efficacious remedy, the High Court in exercise of powers conferred under Article 226 of the Constitution of India, cannot extend the statutory period of appeal which has otherwise expired. Thus, this Court cannot disregard the substantive provisions of special enactment and pass orders which otherwise can be settled only through a mechanism prescribed under the statute. This Court finds entertaining the writ petition as a matter of course without relegating the writ applicant to avail statutory remedy would be in disregard to the legal settled position of law as held by the Supreme Court. Even other wise, entertaining the writ petition beyond the statutory period of limitation would amount to taking a view inconsistent with legislative intent as explicitly provided under Page 21 of 22 C/SCA/14756/2020 ORDER DATED: 01/02/2022 Section 260A(2a) of the Act, as the same would render the legislative scheme and intention behind the provisions otiose. 19. Thus, in light of the aforesaid legal position, the petition fails on the count of preliminary objections of maintainability. We are in agreement with the argument advanced by the department that the statutory time period for filing appeal had expired long back in the month of, itself whereas instead of filing application seeking condonation of delay which had occurred in filing statutory appeal, the writ applicant has preferred present writ application without substantiating the plea of inability to file appeal within prescribed period of limitation. In such circumstances, no indulgence could be shown to the writ applicant. However, we make it clear that we have otherwise not gone into the merits of the impugned order under challenged. We make it clear that it would be open for the writ applicant to approach any other forum under the statute in accordance with law. (J. B. PARDIWALA, J) (NISHA M. THAKORE,J) NEHA Page 22 of 22 "