The High Courts have writ jurisdiction to quash an order of a tribunal or an authority. This jurisdiction is conferred by Article 226/227 of the Constitution of India. This issue would pertain to orders of a subordinate court, decisions of a tribunal and rulings of the Authority for Advance Rulings (AAR) constituted under Chapter XIX-B of the Income-tax Act, 1961. Section 245-S specifies that the advance ruling pronounced by the authority under section 245-R is binding both, on the applicant as well as the commissioner, with regard to a transaction in respect to which a ruling has been sought. Section 245-T provides that the authority may declare its ruling as void ab initio based on the representation by the commissioner or otherwise that the same has been obtained by fraud or misrepresentation of facts.
Significantly, under section 245-U, the authority has been conferred with all the powers of the Civil Court under the Civil Procedure Code, 1908 (CPC) as referred to in section 131 of the Act, while exercising its power under this chapter. Section 245-U(2) provides that the Authority is deemed a Civil Court for the purposes of section 195 of the Criminal Procedure Code, 1973 (CrPC) and every proceedings before the authority shall be deemed to be a judicial proceedings within the meaning of section 193 and 228 and also, for the purpose of section 196 of the Indian Penal Code (IPC).
It is important to note that the powers given under section 131 of the Act are the same powers, which are vested in a Court under the CPC when trying a suit in respect of discovery, production of evidence, enforcing attendance of persons, issue of commission, etc. A perusal of section 245-S of the Act indicates that, while it is binding on the applicant, the commissioner and the income tax authorities subordinate to him, it does not exclude the jurisdiction of the courts either expressly or by implication.
There is no provision which gives finality to the decision of the authority. Even though the provisions of section 245-S provide that the orders of the authority would be binding, this, by itself, cannot exclude the jurisdiction of the courts by implication or otherwise, as it does not provide for any adequate remedy to mitigate or deal with the grievance of the aggrieved party. Therefore, the courts would have jurisdiction to entertain actions under Article 226 of the Constitution impugning the ruling given by the authority under Section 245R of the Act. (Dhulabhai v State of MP. (AIR 1969 (SC) 78, 89) and Gurbax Singh v Financial Commissioner (1991 Suppl 1 SCC 167, 174-175)). The principles enunciated in the aforementioned judgments clearly point to the fact that section 245-S in Chapter XIX-B of the Act cannot be constructed as an ouster clause, excluding the jurisdiction of the courts.
The moot question is whether the authority is a tribunal within the meaning of Article 227 of the Constitution. The broad test, which has been laid down by the courts is that an authority would be construed to be a tribunal within the meaning of Article 227 of the Constitution of India if it is invested with judicial powers. This means that the tribunal should act judicially after ascertaining the facts placed before it and upon application of the relevant law applicable to the facts of a case.
Broadly, the expression used in various judgments rendered by various courts is that an authority would be a Tribunal if it has the ?trappings of a court?. What are the indices of the expression ?trappings of a court? are best illustrated in the judgment of the Supreme Court in the case of Jaswant Sugar Mills Ltd v Lakshmi Chand (AIR 1963 SC 677).
Seen in the light of the principles laid down by the courts, it is clear that the authority constituted under Chapter XIX-B of the Act is a tribunal as it is invested with powers of a civil court by virtue of provisions of section 131 of the Act. This includes all such powers a court is vested with under the CPC when trying a suit in respect of matters relating to discovery, inspection, enforcing attendance of persons including officials of banking company and examining such persons on oath, compelling production of books of account, summons of accounts, etc. Under the provisions of section 245-R, there is a requirement to give an opportunity of hearing to the applicant and to give reasons for rejecting an application.
The cumulative effect of the powers invested and the attributes of the authority, when gleaned from the provisions of Chapter XIX-B, leave no doubt that it has the ?trappings of a court?. Hence, the AAR would undoubtedly qualify as a tribunal within the meaning of Article 227 of the Constitution of India.
Thus, the authority would be amenable to the jurisdiction of a High Court under Article 227, and more so, under Article 226 of the Constitution of India which, without doubt, has a wider reach being conferred with jurisdiction to issue appropriate writ, order or direction to any ?person or authority? for enforcement of fundamental rights under Part-III of the Constitution as also for any other purpose. (Kihoto Hollohan v Zachillhu (1992 SCC Suppl (2) 651, 706-12))
It is now fairly well settled that superior courts can issue a writ of certiorari where there is an error of law, which is apparent on the face of record as these are akin to errors of jurisdiction as against mere errors of law. The moot question is what would be an error apparent on the face of a record. The Supreme Court in the case of Hari Vishnu Kamath v Ahmad Ishaque (AIR 1955 SC 233, 244) has laid down a litmus test, that is, it should be one which is a ?manifest error apparent on the face of the record?. Another quintessential question is what constitutes a ?record?. In the case of R v Northumberland Compensation ((1952) 1 AII.E.R. 122, 131), Lord Justice Denning has opined that the record must contain ?at least the document which initiates the proceedings, the pleadings, if any, and the adjudication, but not the evidence, nor the reasons, unless the tribunal chooses to incorporate them.? In MMB Catholicos v MP Athanasius (AIR 1954 SC 526, 543), the Supreme Court expanded the scope of what would constitute a ?record?. To conclude, the high courts in India have inherent power to issue the writ of certiorari, in respect of errors of fact or law committed by a subordinate court, a tribunal or an authority.
The author is advocate, Supreme Court
