State Bank of Indore v. Income Tax Appellate Tribunal and Ors.
2005-01-03
A.M.SAPRE, ASHOK KUMAR TIWARI
body2005
DigiLaw.ai
Judgment ( 1. ) THIS is an appeal, filed by the assessee under Section 260a of the IT Act against an order dt. 10th May, 1999, passed by Income-tax Appellate Tribunal (for short called Tribunal) in ITA No. 763/ind/1992 and ITA No. 760/ind/1992. This appeal was admitted for final hearing on the following two substantial questions of law : "1. Whether, in the facts and circumstances of the case, in view of Section 80m of the Act, collection charges can be artificially and notionally attributed for determining the net dividend income ? ( 2. ) WHETHER, in the facts and circumstances of the case, the allowance claimed by the appellant under Section 32ab of the Act be modified each time the assessment takes place ? Or Whether, in the facts and circumstances of the case, modification of the deposit and the deduction claimed by the assessee thereon under Section 32ab of the Act vis-a-vis the income in the head profits and gains from business and profession could be done, when audited balance sheets are filed and returns are based on them ?" 2. Heard Shri R. T. Thanevala, learned Counsel for the assessee and Shri R. L. Jain, learned senior counsel with Ku. V. Mandlik, learned Counsel for the Revenue. ( 3. ) SO far as question No. 1 is concerned, the Tribunal in para 8 of the impugned order decided the question in this manner against the assessee : "para 8. During the course of arguments, our attention was invited to the fact that this issue is also covered by our earlier order in the assessees case for the immediately preceding year 1989-90 in which this issue was adjudicated by this Bench in the light of the order of the Tribunal for the asst. yrs. 1991-92 and 1983-84. Since an identical issue has already been adjudicated by us in the immediately preceding year, we find no justification in adjudicating the same again. We, therefore, decide this issue against the assessee. Accordingly, the claim of the assessee is rejected. " ( 4. ) SO far as question No. 2 or its alternative was concerned, the Tribunal in para 10 decided the question in this manner against the assessee : "para 10.
We, therefore, decide this issue against the assessee. Accordingly, the claim of the assessee is rejected. " ( 4. ) SO far as question No. 2 or its alternative was concerned, the Tribunal in para 10 decided the question in this manner against the assessee : "para 10. After giving a thoughtful consideration to the rival submissions of the parties, we have carefully perused the orders of the authorities below in the light of the relevant provisions of law. It is obvious from the order of the CIT (A) that he has decided this issue after following his order for the asst. yr. 1989-90 which was later on challenged before the Tribunal. While dealing with the appeal for the asst. yr. 1989-90 the Tribunal has examined this issue at length and finally decided it against the assessee. Since we have already taken a particular view on identical issue in earlier years, we find no reason to take a different view in the instant case. We, therefore, decide this issue against the assessee. " ( 5. ) WE have purposefully quoted in extenso and in verbatim the manner in which both the aforementioned questions came to be "judicially decided" by the Tribunal. We are at a loss to know as to what the Tribunal actually decided in this case. We can only know the conclusion of their decision "against the assessee" but not the reasons for coming to such conclusion. Reasons are not there because they are somewhere else. In such situation, how do we know those reasons for examining them on merits as an appellate Court as to whether those "so-called reasons" exist or not and secondly whether they are legally sustainable, or not ? Etc. ( 6. ) IF the Tribunal felt--and may be rightly--that they have already decided the issue on merits one way or other in detail by assigning reasons in some earlier case, then certainly they are not required to again repeat the exercise of deciding the same issue on merits in the subsequent cases involving the same point. But certainly, the Tribunal is under legal obligation to formulate in short the question involved (which alone they have done in this case) and then quote their reasoning already arrived at in their main leading order in extenso.
But certainly, the Tribunal is under legal obligation to formulate in short the question involved (which alone they have done in this case) and then quote their reasoning already arrived at in their main leading order in extenso. It is for the reason that by this method of mentioning at least, the appellate Court (such as High Court) is able to read those reasoning which have become the reasoning of this case out of which this appeal arises. In substance, what we mean to say is that those so-called reasoning must be made available to us for examination as an appellate Court for sustaining or setting them aside. The only proper place for mentioning such reasoning is in the impugned order itself. It can be either by way of their reproduction in the impugned order in extenso and verbatim or it can be by mentioning their substance. In either case, mentioning is the must. Since, the order of Tribunal are not published in legal journals, the High Court is not able to read them in any legal journal else we would not have even taken pains to make these observations but would have read it from the legal journals. ( 7. ) WE are indeed constrained to make the aforementioned observations which we do it with rather reluctance. It is not for the High Court to remind the Tribunal as to how and in what manner the orders are required to be passed because Tribunal is presided over by matured, experienced and well-versed Members in the subject. We, however, cannot countenance the casual approach of the Tribunal in deciding the issue sought to be urged by the parties, thereby leaving them as also the High Court in total darkness to find out what could be the reasoning of the learned Members of the Tribunal while coming to the impugned conclusion. ( 8. ) BE that as it may, we have two options open in such eventuality for deciding this appeal. First is to discover the reasoning by asking the parties to file the certified copy of the order referred to by the Tribunal which according to them contain the reasoning and take that order on record for perusal and then decide the appeal on merits.
First is to discover the reasoning by asking the parties to file the certified copy of the order referred to by the Tribunal which according to them contain the reasoning and take that order on record for perusal and then decide the appeal on merits. Second is to set aside the impugned order on the ground of it being "totally unreasoned" and remand the case to Tribunal for deciding the appeal afresh keeping in view the observations made by this Court supra. ( 9. ) AFTER giving our thoughtful view to the whole scenario, we are inclined to follow the second option, as in our opinion, it is more appropriate in the facts of this case. It is also to avoid such recurrence in future. ( 10. ) WE are constrained to allow the appeal, set aside the impugned order insofar as it relates to aforementioned two issues involved in this appeal and remand the case to Tribunal for deciding the appeal afresh on merits. Since, we are remanding the case; we do not wish to apply our mind to the factual/legal issues involved in the appeal though argued by learned Counsel for the parties at length. It is for them to raise all their submissions in appeal before the Tribunal who, we hope, will decide the appeal keeping in view the latest judicial pronouncement, narration of facts necessary for the disposal of appeal, the legal submissions urged by the respective parties in support of their respective case and their eventual conclusion as explained by this Court in yet another case having resemblance of this nature decided today, i. e. , 3rd Jan. , 2005 being IT Ref. No. 20 of 1998 (CIT v. Abhay Kumar Jain ). Let this be done within three months as an outer limit. ( 11. ) IN view of aforesaid discussion, the appeal succeeds and is allowed. Impugned order is set aside.