2015 (12) TMI 1509 - HC - Income Tax

Maintainability of appeal under Section 260A - whether the Tribunal was right in rejecting the reference application filed by the department, though as per rule 45 of Appellate Tribunal Rule 1962, the tribunal may send the statement to the High Court without annexures? - Held that - The impugned order has not been passed in appeal by the Tribunal but consequent to the order of this Court dated 2nd February, 1999 allowing the Revenue s application under Section 256(2) of the Act. Therefore, the impugned order has been passed consequent to the order dated 2nd February, 1999 of this Court in advisory jurisdiction. The impugned order of the Tribunal is not in exercise of its appellate jurisdiction for it to be an order amenable to appeal under Section 260A of the Act. The order passed by the Tribunal consequent to the order passed under Section 256(2) of the Act is not an order passed in Appeal by the Appellate Tribunal. An application under Section 256(2) of the Act and the order passed by this Court thereunder are in the exercise of its advisory jurisdiction. Therefore, any grievance of the parties in respect of the Tribunal, not complying with the order of this Court for whatever reason could not be remedied by an Appeal under Section 260A of the Act. Thus Appeal as filed from the impugned order is not maintainable under Section 260A of the Act.

Issues:
Challenges to the common order passed by the Income Tax Appellate Tribunal for Assessment Years 1989-90 and 1990-91 under Section 260A of the Income Tax Act, 1961.
1. Reference Application Dismissal: The Tribunal dismissed the reference application by the Revenue due to the non-submission of necessary annexures for over five years, granting liberty to revive the application upon acquiring the annexures.
2. Questions of Law: The Revenue questioned the Tribunal's rejection of the reference application, citing Rule 45 of the Appellate Tribunal Rule 1962, arguing that the Tribunal may send the statement to the High Court without annexures.
3. Maintainability of Appeal: The High Court deliberated on the maintainability of the appeal under Section 260A of the Act, asserting that the impugned order was not passed in appeal by the Tribunal but as a consequence of the High Court's order under Section 256(2) of the Act.

Analysis:
1. The Tribunal's dismissal of the reference application was based on the non-receipt of necessary annexures from the Revenue for over five years, hindering the referral of the question of law to the High Court. Despite the rejection, the Revenue was granted liberty to revive the application upon obtaining the required annexures, as per the Tribunal's discretion.
2. The Revenue contended that the Tribunal erred in rejecting the reference application, emphasizing Rule 45 of the Appellate Tribunal Rule 1962, which allows the Tribunal to send the statement to the High Court without annexures if the party responsible for filing defaults. The Revenue argued that the proposed question of law was substantial and warranted admission.
3. The High Court addressed the fundamental issue of the appeal's maintainability under Section 260A of the Act, highlighting that the impugned order was a result of the High Court's advisory jurisdiction under Section 256(2) of the Act, not an appellate decision by the Tribunal. Consequently, the High Court concluded that the appeal was not maintainable under Section 260A of the Act, leading to the dismissal of the appeal without costs.

This comprehensive analysis of the judgment from the Bombay High Court encapsulates the key issues, arguments presented, and the court's decision regarding the dismissal of the appeal under Section 260A of the Income Tax Act, 1961.

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