IT: Where separate appeals were filed against common judgment of Tribunal pertaining to assessment of two different years having similar question of law in respect of same assessee, it would be appropriate to hear appeals on all substantial question of law as framed thereunder
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[2013] 38 taxmann.com 105 (Allahabad)
HIGH COURT OF ALLAHABAD
Commissioner of Income-tax (Central), Kanpur
v.
Sahara India Mutual Benefit Co. Ltd., Lucknow*
SIBGHAT ULLAH KHAN AND DR. SATISH CHANDRA, JJ.
IT APPEAL NOS. 184 & 185 OF 2005
JULY 19, 2013
Section 260A of the Income-tax Act, 1961 - High Court - Appeal to [Substantial question of law] - Whether where separate appeals were filed against common judgment of Tribunal pertaining to assessment of two years having similar question of law in respect of same assessee, it would be appropriate to hear appeals on all substantial question of law as framed thereunder - Whether where there was choice of hearing matter on limited points and other on wider compass, there was nothing wrong in preferring detailed hearing - Held, yes [Paras 3 & 4] [In favour of revenue]
CASES REFERRED TO
CIT v. Indo gulf Fertilizers Ltd. [2013] 213 Taxman 444/[2012] 26 taxmann.com 66 (All.) (para 5).
P. Agrawal for the Appellant. Waseeq Uddin Ahmed for the Respondent.
ORDER
1. Both these appeals are directed against common judgment pertaining to assessment of two years in respect of same assessee. I.T.A. No.185 of 2005 was first admitted on 01.04.2008 on substantial questions of law No.1 to 6 given on the memorandum of appeal. However, in ignorance of the said order, another bench on 23.03.2010 again passed the order of admission of appeal and this time admitted the appeal framing two substantial questions of law on its own, which are quoted below:
| "1. | Whether the transfer of investors' deposit to the tune of 18 to 20% by the respondent-Assessee, M/s Sahara India Ltd. as agent's money, amounts to colourful exercise of power and accordingly, the addition made by the Assessing Officer restricting the investment to 3% was correct and the deletion of the said amount by the appellate authority is substantially illegal, being non application of mind to the facts, circumstances and evidence on record? | |
| 2. | Whether the order passed by the Appellate Tribunal is substantially illegal being non-speaking, perverse and based on unfounded facts ?" |
2. If the bench hearing the appeal on 23.03.2010 had been aware of the earlier order dated 01.04.2008, certainly it would not have passed the order on the said date. To this extent learned counsel for respondent also agrees. Accordingly, it is directed that I.T.A. No.185 of 2005 would be heard on substantial questions of law No.1 to 6 as stated in the memorandum of appeal as per order dated 01.04.2008.
3. As far as I.T.A. No.184 of 2005 is concerned, learned counsel for the appellant has prayed that the same may also be heard on questions of law No.1 to 5 stated therein which are exactly similar as questions of law No.1 to 5 of I.T.A. No.185 of 2005. Learned counsel for respondent has seriously objected to the above prayer on the ground that in this appeal there is no order like the order dated 01.04.2008 passed in I.T.A. No.185 of 2005 admitting the appeal and this appeal was for the first time admitted on 23.03.2010 by exactly similar order as was passed on the same day in I.T.A. No.185 of 2005. However, as both the appeals are directed against the same judgment dated 31.05.2005, hence it would be more appropriate to hear the appeal on all the substantial questions of law as framed thereunder like the I.T.A. No.185 of 2005 otherwise there is likelihood of contradictory orders.
4. If there are two choices, one of hearing the matter on limited points and the other of hearing the matter on wider compass, there is nothing wrong in preferring detailed hearing.
5. Moreover, as already held by this Court in CIT v. Indo Gulf Fertilizers Ltd. [2013] 213 Taxman 444/[2012] 26 taxmann.com 66 (All.) on 10.10.2012 Income Tax Appeal can be heard on all those points on which appeal was admitted and court can frame additional substantial question of law to hear the matter at any time. In this regard reference may also be made to proviso to Section 100(5), C.P.C. which is almost analogous to Section 260-A(4) priviso.
6. Accordingly, it is directed that I.T.A. No.184 of 2005 would be heard on substantial questions of law No.1 to 5 framed at the bottom of the memorandum of the said appeal and I.T.A. No.185 of 2005 on substantial questions of law No.1 to 6 framed at the bottom of the memorandum of the said appeal.
7. In paragraphs 12 & 13 of the memorandum of appeal, it is mentioned that against the orders dated 14.02.2000 and 31.01.2001 which are referred in the impugned judgment of the Tribunal, appeals have been filed at Allahabad High Court. Unfortunately, number of the appeals have not been mentioned. Before proceeding further, it is necessary to know the fate of the said appeals.
8. Accordingly, list in the next cause list.
On the next date, learned counsel for both the parties particularly, learned counsel for the appellant department shall ascertain the fate of the appeals. In case, the appeals have been decided, the court's decision must be placed on record.
Regards
Prarthana Jalan
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