THEIR LORDSHIPS ARE REQUESTED TO FINALIZE THE LAW, WORK COMPLETELY TO SETTLE LAW INSTEAD OF KEEPING IT OPEN AND SET EXAMPLE.

[DEVKUMAR KOTHARI]

THEIR LORDSHIPS ARE REQUESTED TO FINALIZE THE LAW, WORK COMPLETELY TO SETTLE LAW AND SET EXAMPLE.

PRACTICES LIKE WE ARE NOT INCLINED TO INTERFERE ... ‘ WE ARE NOT INCLINED TO EXERCISE OUR JURISDICTION ....’   WITH RIDER LIKE  ‘QUESTION OF LAW IS  KEPT OPEN ...’   IS NOT GOOD , TO BE DECIDED IN APPROPRIATE CASE  ETC.  KEEP UNCERTAINTIES, CONTINUING LITIGATION AND BURDEN ON ALL INCLUDING COURTS FOR CONTINUING AND INCREASING PENDING CASES.

With utmost respect and regards author humbly request their lordships to set example to work completely and not leaving work half done by popular practices like  we are not inclined to ...,   question of law is  kept open ... etc.

Unfortunately, such practices have affected large number of cases in Courts pending and results uncertainty of law and continuing piling of cases.

Such practices sets wrong example for all to adopt short cut ways and keep work incomplete  or half done  leading to further proceedings and  litigation.

Such practices followed even when earlier SLP was dismissed after hearing parties. Now-a-days such practices are becoming more popular and frequent.

When at earlier occasions SLP was dismissed , that too after hearing Appellant and sometimes  Respondent also. Then again taking the same approach and dismissing appeal and keeping question of law open is not good.

We have some examples of cases of large  public interest ( large pendency on similar issues) when SLP was dismissed after hearing parties, but question of law was kept open even when last occasion of dismissal was long ago and at earlier occasion question of law was not kept open.

For example in cases related with penalty u.s. 271.1.c in Which most of High Court has followed SLP dismissed precedence, but recently in case of a Public Sector Bank namely SBI though SLP of revenue has been dismissed but question of law is kept open.

In case of EPF many SLP of department were dismissed long ago. Most of High Courts have decided issue in favor of assessee. Therefore, as per very  old  ruling and precedence of the supreme court, view taken by majority/ most of  High Courts deserves to be adopted. However, honorable  Supreme Court  denied deduction just because there was delay in deposit of EPF for few days or few months.

Another example is about alleged bogus exempted income (like Long-term capital gains). In many cases SLP of revenue have been dismissed without ride that question of law is kept open. Thereafter, after a long period,  SLP is dismissed with rider of keeping question of law open and  then admitting SLP of revenue is some other case on the same issue.

Another example is about share capital and premium, The  honorable Supreme Court dismissed SLP of department in similar facts and circumstances. However, in another case the same set of their lordships admitted SLP and took contrary decision and decided in favor of revenue. Surprisingly the earlier judgment dismissing SLP by the same judges was not even mentioned and considered by the Supreme Court.

This shows that how law is kept contingent even by the Supreme Court and that too for a very long time.

 Only in case of  dismissal of appeal for low tax effect, appeals of revenue  are dismissed  only for the reason of policy decision of GOI. But that is a different situation. In such cases it is provided under law that such dismissal will not be binding on other parties or the same party in other year.

In case of  important issue , it is desirable to decide the appeal on merit.

Unfortunately, such practices are gaining popularity in High Courts also. This is exemplified with data about such practices found in search on this website.

Search Text: question of law is kept open     all laws   all courts

 41008 Record

Search Text: question of law is kept open   Income tax  all Courts

 21219 Records

Search Text: question of law is kept open   all laws Supreme Court

 4812 Records

Search Text: question of law is kept open   Income tax Supreme Court

 337 Records

Search Text: question of law is kept open     all laws SC orders/ highlights

 241 Records

Search Text: question of law is kept open   Income tax SC orders/ highlights

 110 Records

Search Results in judgments of Supreme Court 

Search Text: We are not inclined to exercise our jurisdiction   All laws

1175 Records

Search Text: We are not inclined to exercise our jurisdiction       Income tax

 1901 Records

Search result in SC orders/ highlights

Search Text: We are not inclined to exercise our jurisdiction              all laws

 13 Records

Search Text: We are not inclined to exercise our jurisdiction     Income tax  6 Records

Likewise practice of ‘we are not inclined to. ‘  and dismissing appeals without deciding on merit is not good.

Particularly when High Court has found no  substantial question of law, then without  deciding or finding  whether a substantial question of law  arises, reversing decision of the High Court  the honorable Supreme Court is requested to  avoid practice of holding ‘question of law, if any , is kept open.

It is requested that Supreme Court may  first decide that there is a substantial question of law, then only it can be kept open or pending for final verdict.

Without deciding first  that in fact, there is a substantial question of law arising and High Court was not correct in holding that substantial question of law does not arise it seems premature to hold that substantial question of law is kept open.

The Above lists are only illustrative and cover few laws and case laws reported on this website only. From these illustrative lists one can have an idea of total volumes of such decisions which nurture  uncertainty and enlarge scope of further litigation.

The thoughts underlying this article can relate to any law in which Courts might have adopted such practices. Therefore, this article is placed under category ‘other topics’