2000 PLP 1274 (PTD)

Existence of alternate remedy

Writ will not normally issue-- Constitution of India, Art.226. (b) Income-tax

Appeal to Appellate Tribunal

Writ

Complaint that order of Tribunal was passed without giving petitioner opportunity to be heard

Application for recall of order or for reference barred by limitation

High Court can grant additional time for such applications

Indian Income Tax Act, 1961, Ss.254 & 256

Constitution of India, Art.226. Held, that the grievance of the petitioner was that the appellate order was passed by the Tribunal without notice and opportunity to the petitioner. The petitioner could file an application to the Tribunal itself for recalling the order. The petitioner also had the remedy by way of reference. Hence, the High Court would not interfere under Article 226 of the Constitution, of India. However, it was submitted on behalf of the petitioner that the time available for filing the application for recalling/reference was already over. In such circumstances, if the petitioner filed an application within two weeks either for recalling the order on the ground that the said order was passed without notice and opportunity to the petitioner or, for reference under section 256(1) of the Income Tax Act, 1961, the same would be considered by the Tribunal on the merits. N. D. Premachandran for Petitioner. P.K.R. Menon for Respondents. In this original petition, the petitioner challenges Exh. P-8 order passed by the Income-tax Appellate Tribunal, Cochin Bench. The grievance of the petitioner is that Exh. P-8 order varying Exh. P-4 appellate order was passed by the Tribunal without notice and opportunity to the petitioner. According to learned counsel appearing for the petitioner, Exh. P-8, order is non est in law. I have heard Sri P.K.R. Menon, learned Senior Central Government standing counsel. Learned senior standing counsel submitted that if the petitioner is aggrieved by Exh. P-8 order, the petitioner can file an application for recalling the order before the Tribunal itself and, that the petitioner has also got the remedy by way of reference against the said order. Learned senior standing counsel further, submitted that the petitioner has not resorted to any such course in the case. Learned senior standing counsel also submitted that in such circumstances this Court under Article 226 or Article 227 will not interfere with an order passed by a competent Tribunal. I find force in the submission made by learned senior standing counsel. Learned counsel appearing for the petitioner then submitted that the time available for filing the application for recalling/reference is already over. In such circumstances, if the petitioner files an application within two weeks from today either for recalling Exh. P-8 order on the ground that the said order was passed without notice and opportunity to the petitioner or for reference under section 256(1) of the Income-tax Act, the same will be considered by the Tribunal on the merits. The original petition is disposed of as above. M. B. A. /4045/FC Order accordingly.