G.S. Singhvi, J. - (1.) BY this order, we are disposing of Civil Writ Petitions Nos. 3270 of 1994, 3271 of 1994, 3272 of 1994 and 3273 of 1994. The first two petitions have been filed by V. K. Construction Works Limited and the other two petitions have been filed by Monark Engineers Pvt. Ltd. The grievance of the petitioners in all these petitions is against the notice issued by the respondent to them under section 154 of the Income Tax Act, 1961, for the assessment years 1989 -90 and 1990 -91. The petitioners are engaged in the business of construction of buildings and are assessees under the Income Tax Act. For the years 1989 -90 and 1990 -91, the petitioners filed their returns and claimed deductions under section 32A as well as section 80I of the Income Tax Act. The Assessing Officer, namely, the Assistant Commissioner of Income Tax, Central Circle, Chandigarh, finalised the assessment of the petitioners for the years 1989 -90 and 1990 -91 under section 143(3) of the Act. The petitioners filed separate appeals against the orders of assessment passed by the Assistant Commissioner. These appeals came to be allowed by the Commissioner of Income Tax (Appeals). The appellate authority accepted the claim of the petitioners for deductions under sections 32A and 80I. The appellate authority directed the Assessing Officer to allow the claim of the assessees after calculating the deductions as per rules.
(2.) AGGRIEVED by the orders of the Commissioner of Income Tax (Appeals), the Department has filed second appeals before the Income Tax Appellate Tribunal which are said to be still pending adjudication. In the meanwhile, the Commissioner of Income Tax (Appeals) issued the impugned notices on February 3, 1994, calling upon the petitioners to show cause as to why the so -called mistake of law in the orders passed by it on the appeals of the assessees allowing deductions under sections 32A and 80I be not rectified.
(3.) THE petitioners have assailed these notices on the ground that the mere rendering of judgment by the Supreme Court in CIT v. : [1993]204ITR412(SC) cannot be treated as an error of law apparent on the face of the order which could authorise the respondent to invoke section 154 of the Act. The petitioners assertion is that the condition precedent prescribed in section 154 for issue of a notice to the petitioners has not been fulfilled and, therefore, the action of the respondents is liable to be declared void. The respondent has in its reply pleaded that when the order passed by the Commissioner of Income Tax (Appeals) was founded on the judgment in CIT v. : [1980]121ITR212(Orissa) and that judgment has been reversed, the appellate order has been rendered void and there is no justification for the petitioners to seek intervention of the court at the stage of notice. The respondent has pleaded that the petitioners can file a reply to the show -cause notice and convince the appellate authority that the provisions of section 154 are not attracted in their case and if at all a decision given by the Commissioner of Income Tax (Appeals) is adverse to the petitioners, they can avail of the remedy available to them under the provisions of the Act. Learned counsel for the petitioners vehemently argued that there is every reason for the petitioners to seek the intervention of the court even without filing a reply to the show -cause notice because the very act of the Commissioner of Income Tax (Appeals) of issuing notices is void and the petitioners are not bound to wait for a decision by the Commissioner of Income Tax (Appeals). He has submitted that a party can always approach the court under article 226 without exhausting the remedies available to it under the statute and once the court is satisfied that the order under challenge is without jurisdiction, the court is bound to interfere. He had relied on the decisions of the various High Courts in support of his submissions. In particular, he made reference to Jiyajeerao Cotton Mills Ltd. v. : [1981]130ITR710(Cal) ; V. R. Sonti v. : [1979]117ITR838(Cal) ; CIT v. : [1983]144ITR526(MP) ; ITO v. : [1973]91ITR72(Cal) and CIT v. : [1991]190ITR266(AP) . Learned counsel for the Department has argued that the writ petitions are liable to be dismissed as misconceived and premature because only a notice has been issued to the petitioners and they have an opportunity to submit a reply and convince the competent authority that the notice under section 154 is not warranted. Learned counsel argued that the act of the petitioners in rushing to the court even without filing a reply to the show -cause notice must not be encouraged by the court by exercising its jurisdiction under article 226.;