D.K. SETH, J.

(1) THIS is an application under Section 5 of the Limitation Act, 1963, for condonation of delay. A preliminary objection has been raised by Mr. J. P. Khaitan that the order was passed by the learned Tribunal at Bombay subject to the jurisdiction of the Bombay High Court. The assessment for the concerned previous year reached its finality in another State over which the Tribunal and the High Court of that State had jurisdiction. The jurisdiction of this court cannot be stretched to the Tribunal in another State when the matter reaches finality in the other State.

(2) IN his usual fairness, he had submitted that so far as the assessment for the subsequent years has since been transferred to this State but the concerned assessment having reached finality in another State the transfer of the cases for assessment of the subsequent years will not entitle the assessee to challenge the order of the assessment reached finality in another State, before the High Court of this State. Therefore, this High Court has no jurisdiction. Mr. Khaitan relied upon a decision of this High Court in CIT v. A. B. C. India Ltd. [2002] 255 ITR 108. [LQ/CalHC/2002/139]

(3) LEARNED counsel for the applicant on the other hand, contended that the assessee at present is being assessed in this State. Therefore, at the moment the assessee is subject to the jurisdiction of the Tribunal of this State and the jurisdiction of this High Court. Therefore, at the present moment, it is open to the assessee to approach this High Court. The decision of any High Court in a particular case is binding on the Tribunal irrespective of the area in which it operates. Therefore, this court has jurisdiction since the right of the assessee is being affected within the territorial limits of this High Court and a part of the cause of action has since arisen within this State.

(4) THIS is an application under Section 5 of the Limitation Act in connection with an appeal. In the course of deciding the question of condonation of delay the court is empowered to look into the maintainability of the appeal before this court even before it embarks upon deciding the question of condonation of delay. The application under Section 5 has been filed in connection with an appeal under Section 260a of the Income-tax Act, 1961, before this High Court against an order passed by the learned Appellate Tribunal at Mumbai. Section 260a provides that an appeal shall lie to the High Court from every order passed in appeal by the Appellate Tribunal. Section 269 defines High Court for the purpose of Chapter XX to mean "in relation to any State the High Court for that State". Therefore, when the Appellate Tribunal at Mumbai disposes of the appeal, the appeal under Section 260a in Chapter XX would lie to the High Court as defined in Section 269 at Bombay being the High Court of that State, the Appellate Tribunal within the jurisdiction of which or of that State passed the order. Therefore, an order passed by the Appellate Tribunal of a particular State would lie to the High Court of that State and in relation to the Union Territories to the High Court defined in Section 269. By reason thereof, the appeal under Section 260a in the present case would lie to the High Court at Bombay.

(5) THE decision of this court in A. B. C. India Ltd. [2002] 255 ITR 108 proceeds on the basis of the propriety and congeniality of the administration of justice. The question of cause of action would be irrelevant since the court would be determining the question since determined by a Tribunal of another State which, according to law, is bound by the decision of the Supreme Court at the first place and then by a decision of the jurisdictional High Court. Therefore, it would create a judicial anomaly with regard to precedence though the order passed by this court would be binding upon the Tribunal of another State. This would create an anomalous situation with regard to pure question of law. Therefore, assumption of jurisdiction in such a case would amount to judicial impropriety and irregularity.

(6) HAVING regard to the facts and circumstances of the case, which is an admitted position, that the assessment had reached finality before the learned Tribunal in another State, namely, Bombay. We are in full agreement with the view taken in A. B. C. India Ltd. Therefore, following the ratio laid down therein, we hold that this court cannot assume jurisdiction in respect of the matters reaching finality before the Tribunal in another State subject to the jurisdiction of the High Court of that State.

(7) IN the circumstances, we grant liberty to the assessee to present the appeal before the jurisdictional High Court exercising jurisdiction over the Tribunal, which has passed the order appealed against within one month from date. The assessee shall be entitled to take aid of Section 14 of the Limitation Act, if so advised.

(8) THE advocate-on-record for the appellant may take back the memo of appeal and present the same before the appropriate court.