* IN THE fflGH COUET OF DELHI AT NEW DELHI + CW 2935 /2Q04 date of decision : 15.3.2004 M/S Hansch International Pvt Ltd Petitioner Through Mr.K.R.Manjani Advocate versus ^ ^ CommissionerofIncome-taxDelhiIV. Respondent Tlirough Mr. R.D. Jolly with Ms Rashmi Chopra Adv CORAMj HON'BLE MR. JUSTICE B.C. PATEL, C. J. HON'BLE MR. JUSTICE BADAR DURREZ AHMED. i) WhetherReportersof local papers may be allowedto see the judgment. ii) To be referred to the reporter ornot? lii) Whetherthejudgmentshould be reportedin the Digest? % V' This writ petition is filed against the order made by Commissioner of Income-tax, Delhi on 31.10.2003 in exercise of his revisional jurisdiction. From the order it transpires that a return was filed by the petitioner declaring loss of Rs.2,65,590/-. The source of income was dividend which amounted to Rs. 4,34,166/-. The assessing officer completed the assessment under Section 143(3) of the Income-tax Act, 1961 (for short 'the Act') on 23.1.2003 and assessed the net loss of Rs. V Digitally Signed By:AMULYA Certify that the digital file and physical file have been compared and the digital data is as per the physical file and no page is missing. Signature Not Verified w . ih. 2 [WP(C)2935/2004] 1,16,630/-afterdisallowanceofexpensesof Rs. 1,48,957/-,Subsequently, the proceedings under Section 148 of the Act came to be initiated. An orderundersection154 of the Act alsocametobe passed. An appealhas alsobeen filed by the assessee. However, there is a disputewhetherthe appealhas been filed against the order under Section 154 or against the assessment order under section 143(3) of the Act. The stand of the assessee is that appeal is not preferred against an order made under S. 143(3) of the Act. The assessee has requested the Commissioner, inter alia, to direct the assessing officer to revise the assessment order and grant it relief of Rs. 1,48,957/-. Against the order made under section 143(3) of the Act, an appeal is provided, where the appellate authority is entitled to appreciate evidence and arrive at a decision. Similarly, an order made under Section 147 of the Act is also appealable. In the instantcase the assesseeinstead of preferring an appeal preferred a revision. The jurisdiction of the Commissionerwas limited. He was not required to examine the matter on facts as an appellateforum. The assesseedid not avail of theremedy of appeal for thereasons best known to him. Anyhow, the Commissioner found that the assesseeclaimed the entiregross dividendincome amountingto Rs. 4,34,166/-as an item whichisexer^^Expensesweredebitedseparatelyforclaimingbyway V 5 [WP(C)2935/2004] subject matter or proceedingor from the absence of some preliminary proceedingorthecourtitselfmay notbelegallyconstitutedor sufferfrom certain disability by reason of extraneous circumstances.When the jurisdictionof the court depends upon the existenceof some collateral facts, it is well settledthat the Court cannotby awrong decisionof the fact give itjurisdictionwhichit wouldnot otherwisepossess. TheCourt further clarified that it is a patent error which can be corrected by certioraribut not a mere wrong decision. The Supreme Court further observed as under:- "Tlie essentialfeaturesof die remedyby way ofcertiorari have been statedwith remarkablebrevityand clearnessby Morris L. J. in the recentcase of Rex v. Northumberland CompensationAppellate Tribunal [1952] 1 KB 338 at 357,. The Lord Justice says: "It is plainthat certiorariwill not issue as the cloakof an appealin disguise.It does not lie in order to bringup an, orderor decision for re-hearing of tlie issueraisedin the proceedings.Itexiststo correcterroroflaw whenrevealed on the face of an order or decision or irregulantyor absenceofor excessofjurisdictionwhen shown." The SupremeCourtin die case of Sedi ChandRatanv. PanditDurga Prasad,AIR 2003 SCW 3078 observedas under: "Wlierediereis complete lack of jurisdictionfor die officer of authorityor Tribunal to take die action or diere has been a contraventionof fundamentalrights or therehas been aviolationof mles of naturaljustice or where die Tribunalactedunder a provisionof law, which is vires, then notwidistandingthe ! '1^ [WP(C) 2935/2004] existence of an alternative renKdy, the High Court can exerciseitsjurisdictiontograntrelief 1 In our opinion,the impugnedorderis notwithoutjurisdictionnor is it palpablyerroneous. The only pointcanvassedby the learnedcounselfor the petitioneris that theCommissionerhas committedand en*oroflaw in the facmal matrix of the case. In a writ of certiorari, even if we were to agree with the petitioner after considering the matter in detail, as cautionedby the SupremeCoiurt, we could not substituteour viewsfor those of the Commissioner. In these circumstances, tliisCourt would not like to exerciseitswritjurisdictionandhencetliepetitionis dismissed. CHIEF JUSTICE March 15,2004 BADARDURREZAHMED,J. ~vsp