For a second section 154 rectification application, Writ jurisdiction cannot be used because the order is appealable
Fact and issue of the case
In the writ petition, inter alia, order dated 25th November, 2020 passed by the concerned Revenue authority whereby rectification application made by the petitioner under section 154 of the Income Tax Act, 1961(hereinafter referred to as “said Act of 1961”) has been rejected, is under challenge.
Petitioner submits that after dismissal of rectification application under section 154 a second rectification application has been made under the said provision and prayer has been made for disposal of the second rectification application by the concerned Revenue Officer.
During course of hearing Mr. Majumder, learned Deputy Solicitor General has opposed the prayer of the petitioner in view of subsistence of appeal provision under section 246 (i)(c) of the said Act of 1961. According to the Revenue authority the order passed under section 154 rejecting the rectification application of the petitioner is an appealable order therefore second rectification application is not maintainable.
Observation of the court
Having considered the submissions made on behalf of the parties and on perusal of the relevant provisions of the said Act of 1961 it appears that against rejection of rectification application filed under section 154 of the said Act of 1961 appeal lies before the appellate authority under section 246 (1)(c).
It is trite law that where an alternative efficacious speedy remedy is available, the writ petition questioning the appealable order ought not to be entertained unless a case has been made out in the writ petition that there is gross violation of natural justice.
In view of subsistence of appeal provisions under section 246(i)(c) against the order passed under section 154 the prayer of the petitioner for giving direction upon the concerned Revenue authority to consider the second rectification application cannot be countenanced.
However, in view of existence of appeal provision under section 246 sub-section (c) petitioner shall be at liberty to prefer an appeal against the order dated 25th November, 2020 before the appellate authority; if such appeal is filed within fortnight from date along with application for condonation of delay the appellate authority shall consider the condonation of delay application sympathetically in consideration of the fact that petitioner has approached the High Court with the present writ petition.
Accordingly, the writ petition stands disposed of.
There shall be no order as to costs.
Urgent photostat certified copy of the order, if applied for, be given to the parties, upon usual undertakings.
In the result, appeal of the assessee is allowed and ruled in favour of the assessee