1999 (3) TMI 110 - AT - Income Tax

Summary

Issues:
1. Modification of common order in ITA Nos. 694 and 695/Coch/1994 for asst. yrs. 1990-91 and 1991-92.
2. Refusal to refer questions of law to the High Court under s. 256(1) of the IT Act.
3. Discrepancy between Tribunal's order and High Court's judgment regarding the status of the firm as unregistered.
4. Maintainability of the miscellaneous petition filed by the Departmental Representative under s. 254(2) of the Act.

Analysis:

Issue 1:
The Department filed a miscellaneous petition under s. 254(2) of the IT Act, 1961, seeking modification of the Tribunal's common order in ITA Nos. 694 and 695/Coch/1994 for the assessment years 1990-91 and 1991-92. The Department alleged that the Tribunal's order was contrary to the judgment of the Hon'ble High Court of Kerala. The Tribunal, in its order, mentioned that the issue was covered by its earlier decision for the assessment years 1982-83 to 1984-85. The CIT(A) directed the AO to treat the firm as unregistered based on the Tribunal's previous directions. The Tribunal upheld this decision for the years 1990-91 and 1991-92, stating that there was no scope for interference.

Issue 2:
The Department sought to refer questions of law to the High Court under s. 256(1) of the IT Act, but the Tribunal declined, stating that the questions were based on facts and circumstances considered for the assessment years under review. The Tribunal held that the questions proposed by the Department were not separate questions of law but arose from the existing case.

Issue 3:
The Department argued that the Tribunal's order did not align with the High Court's observations in a previous judgment regarding the firm's status as unregistered. The Department requested modification of the order to conform with the High Court's directions. The assessee opposed the modification, arguing that there was no apparent mistake in the Tribunal's order and that the High Court's subsequent observations did not necessitate a change.

Issue 4:
The assessee contended that the miscellaneous petition filed by the Departmental Representative was not maintainable under s. 254(2) of the Act, as it should have been filed by the assessee or the AO. The Tribunal agreed with this argument, dismissing the petition as not maintainable and advising the Department to file the petition through the appropriate authority within the prescribed time limit.

In conclusion, the Tribunal dismissed the miscellaneous petition filed by the Departmental Representative, stating that it was not maintainable due to procedural reasons. The Tribunal emphasized that the Department could file a valid petition through the competent authority within the specified time frame, but the current petition was not acceptable.