ORDER
V. Dongzathang, Accountant Member
1. This appeal of the revenue is directed against the order of the CIT(A). It is relevant for the assessment year 1974-75.
2. The assessce Md. Zafrulla derives income from the partnership firm M/s. Rafiullah & Bros, and M/s. Oriental Drug Distributors. He filed his return of income for the above assessment year on 4-10-1974. The assessment was completed by an order dated 26-2-1977 determining the income as follows :
1. Net profit from M/s. Rafiullah & Bros, as shown
subject to rectification as per allocated share
income of the firm Rs. 12,883
2.55% share of M/s. Oriental Drug Distributors as
shown subject to rectification Rs. 44,357
Rs. 57,240
Life Insurance premium deduction under section
80C be considered on production of premium
receipt as there is variation in payment of
premium amount
Rs. 57,240
Later on, the CIT, North Eastern Region, Shillong issued a show-cause notice and passed order under Section 263 of the Income-tax Act, 1961, inter alia, stating that--
I have gone through the records in the case of the assessee and of the firm. By my separate order under Section 263 of date, I have set aside the assessment order in the case of the firm for facts on reasons mentioned therein. In view of my findings therein and also in view of the admission made by the assessee’s representative, I am satisfied that the assessment order in the present case has been erroneous and prejudicial to the interest of revenue. I, therefore, set aside the assessment order and direct the ITO to make fresh assessment in accordance with law.
On the basis of the above direction the Assessing Officer completed a fresh assessment on 13-3-1980 as follows :
Total income as per original assessment Rs. 57,240
Deduct:Share income in M/s. Rafiullah & Bros.
as per original assessment Rs. 12,883
Rs. 44,357
Add:Share income in M/s. Rafiullah & Bros.
as per allocation Rs. 9,86,103
Rs. 10,30,460
3. Aggrieved by the said order the assessee filed an appeal before the CIT(A). At the time of hearing, the learned counsel Shri S.C. Tibrewal filed an additional ground which reads as under :
For that the order passed by the CIT under Section 263 cancelling the original assessment was null and void and was not an order in the eye of law and accordingly fresh order of assessment passed by the IAC. Assessment is without jurisdiction, invalid and may be annulled.
4. The learned CIT(A) admitted the said additional ground as according to him, it was of a technical and legal nature consideration of which does not require any fresh evidence.
5. At the hearing it was the submission of Shri Tibrewal, the learned counsel of the assessee, that the original assessment dated 26-2-1977 was not erroneous and prejudicial to the interest of revenue and as such condition precedent for invoking the provisions of Section 263 were absent. It was further contended that the order passed by the CIT under Section 263 without satisfying the condition precedent is not an order in the eye of law and is void and the order of assessment under appeal passed in pursuance of Commissioner’s order under Section 263 is equally bad in the law and void. The learned counsel elaborated the above submissions by relying on various decisions including the following decisions, namely :
1. Raja jagdambika Pratap Narain Singh v. CBDT [1975] 100 ITR 698 (SC) at page 703;
2. CIT v. Raja Reddy Mallaram [1964] 51 ITR 285 (SC);
3. V. Subramania Iyer v. CIT [1978] 113 ITR 685 (Ker.); and
4. Johilla Coalfields Co. Ltd. v. CIT [1960] 39 ITR 137 (MP).
The learned departmental representative Shri S.N. Sarma Barthakur, however, challenged the jurisdiction of the CIT(A) to adjudicate this issue. The learned CIT(A), however, overruled such objection and disposed of the appeal as follows :
13.1 am of the considered view that the order passed by the CIT under Section 263 was without satisfying the condition precedent required by the said section and as such the fresh order of assessment passed by the IAC, Assessment Range in pursuance of the directions issued by the CIT is without jurisdiction. Mr. Tibrewal further submits that the order passed by the IAC, Assessment Range is now the subject matter of appeal and if the said order itself stands on a foundation which does not exist the order under appeal should be held as null and void. I have carefully considered the submissions of the learned Authorised Representative and I cannot but agree that the present order of assessment which is the subject matter of this appeal has no basis to stand upon and it cannot be upheld. I, therefore, hold that the assessment order is without the authority of law and is null and void.
6. The revenue is aggrieved and has come up in appeal before the Tribunal. The original appeal was filed before the Income-tax Appellate Tribunal, Gauhati Bench. The same was transferred to Calcutta and it has been fixed for hearing from time to time since 1989. However, there has never been any compliance to the notices. The last hearing was fixed on 10-9-1991 and the notice was duly served on the assessee. However, there was again no compliance. The appeal is, therefore, disposed of ex parte and on merit after hearing the learned departmental representative Shri J. Mukhopadhyay.
7. At the outset, the learned departmental representative challenged the jurisdiction of the learned CIT(A) to adjudicate on the order passed by the CIT under Section 263 and it was contended that since learned CIT(A) had no jurisdiction, his order was void and is liable to be set aside. Even in any case it is submitted that the learned CIT(A) only directed the assessing officer to include the share income of the assessee from the firm in which he is a partner and, therefore, there can be no grievance caused to the assessee.
8. On careful consideration of the submissions in the light of the material on record, we are of the view that the learned CIT(A) has not properly assumed the jurisdiction for entertaining this ground and setting aside the order of the ITO which was made on the basis of the directions under Section 263 of the Act. The Income-tax Act is a self-contained Act. Chapter XIII of the Act lays down various Income-tax authorities and the respective jurisdiction in terms of control of the Income-tax authorities. Similarly, Section 246 of the Act provides for appealable orders that can be filed to the first appellate authority against the orders of the assessing officer. Insofar as the revisional order passed by the Commissioner under Section 263 a specific provision had been made under Section 253 for filing appeal before the Appellate Tribunal. Section 246 of the Act did not provide for filing appeal before the first appellate authority i.e., Dy. Commissioner of Income-tax (Appeals)/Commissioner of Income-tax (Appeals) against the order under Section 263. There is, therefore, no reason for the learned CIT(A) to entertain the ground which challenges the jurisdiction of the Commissioner under Section 263 of the Act. The Hon’ble Supreme Court in the case of Champalal Binani v. CIT [1970] 76 ITR 692 considered the question of jurisdiction in the context of writ petition filed before the High Court and it was held that where remedy is provided by way of appeal and if any grievance about the sufficiency of the opportunity given to the assessee to make his representations his obvious remedy was to appeal against the order under Section 33B to the Appellate Tribunal. Where the aggrieved party has an alternative remedy the High Court would be slow to entertain a petition challenging an order of the taxing authority which is, ex facie, with jurisdiction. The Income-tax Act provides a complete and self-contained machinery for obtaining relief against improper action taken by the departmental authorities and normally the party feeling aggrieved by such action cannot be permitted to refuse to have recourse to that machinery and to approach the High Court directly against the action.
9. From the ratio of the above decision, it is clear that the aggrieved party has to seek remedy before the proper forum and, therefore, it cannot supersede proper forum and come direct to the higher Court to get relief much less to the one which is not having any jurisdiction. In the instant case, the Commissioner passed order under Section 263 on 28-2-1978. This order is appealable and the appeal can be filed to the Income-tax Appellate Tribunal in terms of Section 253 of the Act. Apparently, the assessee has failed to file the said appeal. From the records it appears that the assessee filed a writ petition before the Hon’ble Gauhati High Court which answered the question in the same line as of the decision of the Supreme Court referred to above and the said writ petition was dismissed as follows :
The issue raised is whether the order of the Income-tax Officer passed on June 25, 1977 could have been revised by the Commissioner of Income-tax by the impugned order on February 26, 1978. This question is not free from doubt when Section 263 is read with Section 144B after the Central Amendment Act 67 of 1984. We consider it not expedient to decide that question in the instant case as the impugned order is appealable. There we direct the petitioner assessee to seek relief in the appeal against the impugned order. If the appeal is filed by the assessee the writ petitioner in one month from today the appellate authority is directed to hear the appeal on merits and pass appropriate orders. All interlocutory orders pending the writ petition stand vacated.
Having failed to get remedy from the Hon’ble High Court and at the same time having failed to file proper appeal before the Income-tax Appellate Tribunal, the assessee tried to bring the issue in the form of an additional ground before the learned CIT(A) who admitted the same and disposed of the appeal in the manner which is impugned before us. As stated earlier, the jurisdiction of the learned CIT(A) has been clearly defined under Section 246 of the Act and since the learned CIT(A) has got no jurisdiction to hear the appeal against the order of the Commissioner under Section 263, we have no hesitation in setting aside his order. This view which we are adopting is fully supported by the decision of the Madras High Court in the case of CIT v. L.G. Ramamurthi [ 1977] 110 ITR 453 wherein Their Lordships considered the question of judicial decorum and decency. In that case it was held that if a Bench of a Tribunal on the identical facts is allowed to come to a conclusion directly opposed to the conclusion reached by another Bench of the Tribunal on the earlier occasion, that will be destructive of the institutional integrity itself. That is the reason why in a High Court, if a single Judge takes a view different from the one taken by another Judge on a question of law, he does not finally pronounce his view that the matter is referred to a Division Bench. Similarly if a Division Bench differs from the view taken by another Division Bench it does not express disagreement and pronounce its different views, but has the matter posted before a Fuller Bench for considering the question. If that is the position even with regard to a question of law, the position will be a fortiori with regard to a question of fact. This view has been expressed to maintain the judicial decorum and decency and in the interest of comity of judicial precedents.
If the co-ordinate Benches of the Tribunal cannot overrule the earlier decision, it is impossible to hold that a CIT(A) who is of equal and same rank and is not vested with specific jurisdiction can adjudicate on the validity of the order of the Commissioner under Section 263. In that view of the matter we hold that the learned CIT(A) has got no jurisdiction and his order is accordingly set aside.
10. This disposes of the additional ground filed by the revenue contending that without prejudice to (1), (2) & (3) above the learned CIT(A) erred both in facts and in deciding the justifiability of initiation of proceedings under Section 263 by the Commissioner of Income-tax and in that view annulling the assessment made by the ITO as per direction of the Commissioner contained in this order under Section 263 of the Income-tax Act.
11. In the result, the appeal is restored to the file of the CIT(A) with the direction that he will dispose of the appeal on merit.