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TMI Blog2008 (7) TMI 10X X X X Extracts X X X X X X X X Extracts X X X X ..... 5216 OF 2002 - - - Dated:- 21-7-2008 - Dr. ARIJIT PASAYAT, J. 1. By order dated 13.3.2008, a reference was made to larger Bench and that is how these cases are before us. The order, of reference, inter-alia, reads as follows: " In view of the aforesaid position, we are of the opinion that matter requires consideration by a larger Bench to the extent whether revenue can be precluded from defending itself by relying upon the contrary decision. We make it clear that we are not doubting the correctness of the view taken by this Court in the cases of Union of India v. Kaumudini Narayan Dalal (2001)10 SCC 231, CIT v. Narendra Doshi (2004) 2 SCC 801 and CIT v. Shivsagar Estate (2004) 9 SCC 420 to the effect that if the revenue has not ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... is not because of any principle of res judicata but because of the theory of precedent or the precedential value of the earlier pronouncement. Where facts and law in a subsequent assessment year are the same, no authority whether quasi judicial or judicial can generally be permitted to take a different view. This mandate is subject only to the usual gateways of distinguishing the earlier decision or where the earlier decision is per incuriam. However, these are fetters only on a coordinate bench which, failing the possibility of availing of either of these gateways, may yet differ with the view expressed and refer the matter to a bench of superior strength or in some cases to a bench of superior jurisdiction. 22. A decision can be set as ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ) SCC 683), the position was highlighted by this Court as follows: "16. We are unable to appreciate that objection raised against the prosecution of this appeal by the appellant or other S.L.Ps filed in similar matters. Sometimes, as it was stated on behalf of the State, the State Government may not choose to file appeals against certain judgments of the High Court rendered in Writ petitions when they are considered as stray cases and not worthwhile invoking the discretionary jurisdiction of this Court under Article 136 of the Constitution, for seeking redressal therefore. At other times, it is also possible for the State, not to file appeals before this Court in some matters on account of improper advice or negligence or improper conduc ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of this Court in Debdas Kumar (1991 Supp (1) SCC 138) (supra). If the judgment of Debdas Kumar (supra) is to be followed finding of fact was required to be arrived at that they are similarly situated to the case of Debdas Kumar (supra) which in turn would mean that they are also holders of diploma in engineering. They admittedly being not, the contention of the appellants could not be rejected. Non-filing of an appeal, in any event, would not be a ground for refusing to consider a matter on its own merits. (See State of Maharashtra v. Digambar 1995 (4) SCC 683). 29. In State of Bihar and Ors. v. Ramdeo Yadav and Ors. (1996 (3) SCC 493) wherein this Court noticed Debdas Kumar (supra) holding: "Shri B.B. Singh, the learned counsel for ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... er institution. Therefore, the High Court cannot issue a mandamus directing the Government to act in violation of law." 8. In Commissioner of Central Excise, Raipur v. Hira Cement (2006 (2) SCC 439) at para 24 the position was reiterated. 9. In Chief Secretary to Government of Andhra Pradesh and Anr. v. V.J. Cornelius and Ors. (1981 (2) SCC 347) it was observed that equity is not relevant factor for the purpose of interpretation. 10. It will be relevant to note that in Karam Chari v. Union of India and Ors. (2000 (243) ITR 143) and Union of India v. Kaumudini Narayan Dalal and Anr. (2001 (249) ITR), this Court observed that without a just cause revenue cannot file the appeal in one case while deciding not to file appeal in another ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ion is revenue neutral there may not be any need for preferring the appeal. All these certainly provide the foundation for making a departure. 13. In answering the reference, we hold that merely because in some cases the revenue has not preferred appeal that does not operate as a bar for the revenue to prefer an appeal in another case where there is just cause for doing so or it is in public interest to do so or for a pronouncement by the higher Court when divergent views are expressed by the Tribunals or the High Courts. 14. The matter shall be placed before the concerned Bench for disposal of the appeals. ...............................J. (Dr. ARIJIT PASAYAT) ...............................J. (P. SATHASIVAM) ............... ..... X X X X Extracts X X X X X X X X Extracts X X X X
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