JUDGMENT B.M. Lal, J.
1. Sri V.K. Upadhyaya, for the petitioner, and Sri Shekhar Srivastava, for the respondents, are heard.
2. By this petition, the petitioner seeks an order, direction or writ in the nature of certiorari quashing the notice dated November 12, 1992 (contained in annexure-6 to the writ petition), whereby the petitioner is called upon to show cause as to why an order imposing penalty under Section 271(1)(c) of the Income-tax Act, 1961 (for short "the Act"), be not passed against him and also quashing an order dated April 15, 1993 (contained in annexure-11 to the writ petition), whereby the Tribunal, Respondent No. 1, refused to stay proceedings under Section 271(1)(c) of the Act initiated against the petitioner.
3. The short facts leading to this petition are as under :
4. The petitioner is an assessee under the Act and was assessed for the years 1990-91 and 1991-92 by the Assessing Officer, against which he preferred appeals which were decided by a consolidated order dated August 14, 1992 passed by respondent No. 2. By the order dated August 14, 1992, respondent No. 2 held that the petitioner did not disclose all the facts material to the computation of the total income in respect of disallowed/ enhanced claims and thus had concealed particulars of income and furnished inaccurate particulars thereof and accordingly, by another order dated August 14, 1992, respondent No. 2 issued notices to the petitioner for imposition of penalty under Section 271(1)(c) read with Clause (iii) and Explanation 1 thereof, for the assessment years 1990-91 and 1991-92. Against the order dated August 14, 1992, passed by respondent No, 2, the petitioner preferred an appeal before the Income-tax Appellate Tribunal, respondent No. 1, which is still pending.
5. In the meantime, on November 12, 1992, respondent No. 4 also issued notice to the petitioner for imposition of penalty under Section 271(1)(c) of the Act for the assessment year 1991-92. Thereafter, on March 11, 1993, the petitioner filed an application before respondent No. 1 praying therein that the penalty proceedings against the petitioner may be stayed but the application made by the petitioner has been rejected by respondent No. 1 by the impugned order dated April 15, 1993. Hence this petition.
6. Learned counsel for the petitioner contended that the impugned notice dated November 12, 1992, issued by respondent No. 4 for the assessment year 1991-92 is illegal and without jurisdiction, firstly, because at the time of issuance of the impugned notice, no assessment proceedings were pending before respondent No. 4 and, secondly, because for the same assessment year, i.e., 1991-92, notice dated August 14, 1992, was already issued by respondent No. 2 and since the proceedings under Section 271 of the Act entail penal consequences and are penal in nature, issuance of two parallel notices under Section 271 of the Act for the same assessment year 1991-92 by respondent No. 2 and by respondent No. 4 both is barred by the principle of double jeopardy.
7. It is further submitted that since issuance of notice by respondent No. 4 is without jurisdiction, even without complying with the doctrine of exhaustion of alternative remedy available to the assessee under the provisions of the Act, the assessee can invoke the extraordinary jurisdiction of this court and for this purpose, learned counsel relied upon State of U.P. v. Mohammad Nooh, AIR 1958 SC 86.
8. Here we may point out that the jurisdiction under article 226 of the Constitution is neither appellate nor revisional, rather it is an extraordinary and discretionary one and the issuance of writs is a rule of policy, convenience and discretion rather than a rule of law ; therefore, exhaustion of statutory remedy plays an upper role before the issuance of prerogative writs.
9. However, in the instant case, it is not that respondent No. 4 has no power, authority or jurisdiction at all, to issue notices under Section 271 of the Act, but, of course, if no proceedings were pending before respondent No. 4 and in respect of the same assessment year 1991-92 notice under Section 271 of the Act was already issued by respondent No. 2, there appears no reason or justification for the issuance of notice by respondent-No. 4. Any way, it was for the petitioner to bring the factual position to the notice of respondent No. 4. However, in the circumstances of the present case, we are sure that if the petitioner would bring the entire facts to the notice of respondent No. 4 including the fact that with regard to the same assessment year 1991-92, notice under Section 271 of the Act has already been issued by respondent No. 2, respondent No. 4 would certainly consider the same and recall the notice under challenge dated November 12, 1992, issued by him.
10. Further, assailing the impugned order dated April 15, 1993, contained in annexure-11 to the writ petition, learned counsel for the petitioner contended that though the Tribunal held that it is empowered to stay the proceedings, yet it refused to stay the same ; therefore, the order passed by the Tribunal is bad in law and liable to be quashed.
11. In this respect, we may observe that to have power is one thing and to exercise the same is quite another, Indeed, the Tribunal has powers to stay the proceedings but that power has to be exercised by the authority concerned considering the settled norms in that regard. Granting or refusing stay is discretionary ; therefore, if the order is passed considering settled norms, the same cannot be said to have been suffering from any legal infirmity or jurisdictional error. In our opinion, the impugned order contained in annexure-11 to the writ petition cannot be said to be without jurisdiction warranting interference in the writ jurisdiction which too is discretionary.
12. In view of the discussions aforesaid, this petition has no force and is liable to be disposed of finally subject to the observations made above and hereinafter.
13. Considering the facts and circumstances of the case, it is directed that if by now the appeal pending before respondent No. 1 is not decided on the merits, the same shall be decided expeditiously, and preferably within a period of two months from the date of presentation of a certified copy of this order.
14. With the above directions, this petition is finally disposed of. Stay order, if any is hereby vacated.
15. Let a copy of this order be issued to learned counsel on the payment of usual charges within two days.