1990 (4) TMI 85 - AT - Income Tax

High Court, Original Order, Question Of Fact, Question Of Law, Reference Application, Settlement Commission

Summary

Issues:
Jurisdiction of the ITAT during pendency of case before Settlement Commission.
Applicability of section 245F(2) to appeals filed before ITAT against order of revision made under section 263.

Analysis:
1. The Department sought to frame questions based on orders dismissing miscellaneous applications filed against an ITAT order allowing the assessee's appeal against the CIT under section 263. The Tribunal rejected the reference application filed by the Department, stating that the questions raised were not referable. The Tribunal highlighted that the Settlement Commission cannot supersede the powers of the ITAT, as settled by the Supreme Court in CIT v. B.N. Bhattachargee [1979] 118 ITR 461. The Tribunal emphasized that the ITAT had jurisdiction to entertain the appeal, especially since the CIT had rejected the assessee's objection and proceeded to pass an order under section 263 before the case was admitted by the Settlement Commission.

2. The Tribunal clarified that the second question raised by the Department did not arise from the original order. The Tribunal explained that the term "case" as defined in section 245A does not include revision proceedings, as per the decision in the case of B.N. Bhattachargee. Additionally, the Tribunal noted that the Department had not raised the jurisdictional question during the appeal hearing. The Tribunal dismissed the miscellaneous application because it aimed to reargue points not raised during the original hearing, leading to the conclusion that the questions framed by the Revenue were not referable questions of law.

3. Ultimately, the Tribunal rejected the Reference Application, emphasizing that the questions raised by the Department were not referable as they did not directly stem from the original order. The Tribunal's decision was based on the lack of jurisdictional issues raised during the appeal hearing and the attempt to introduce new arguments through miscellaneous applications. The Tribunal's analysis focused on the specific legal definitions and precedents to determine the applicability of section 245F(2) and the jurisdiction of the ITAT in cases involving the Settlement Commission and orders under section 263.