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TMI Blog2005 (1) TMI 22X X X X Extracts X X X X X X X X Extracts X X X X ..... t under section 256(1) of the Act, the Tribunal by the impugned order rejected the prayer saying that it is a question of fact and hence, not a fit case to refer. Applications are allowed. The Tribunal is directed to send the statement of case - - - - - Dated:- 3-1-2005 - Judge(s) : A. M. SAPRE., ASHOK KUMAR TIWARI. JUDGMENT The judgment of the court was delivered by A.M. Sapre J.-The decision rendered in this reference application shall govern disposal of the other two reference applications also being I.T.R. No. 14 of 1998 and I.T.R. No. 16 of 1998 because all the three reference applications involve identical points and are based on similar type of order passed by the Tribunal ("the ITAT"). This is an application made by the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d order rejected the prayer saying that it is a question of fact and hence, not a fit case to refer. We do not agree to the view expressed by the Tribunal both in their order passed in the main appeal out of which this reference application arises as also in the order which resulted in dismissal of the application made under section 256(1) ibid. In the first place, the manner in which the appeal filed by the assessee came to be decided in their favour by the Tribunal deserves to be deprecated rather than to appreciate. Secondly, in the absence of any reasoning, much less factual discussion regarding the nature of the royalty amount, the question involved could not have been decided by the Tribunal one way or the other. Thirdly, again in ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nal and that too without mentioning the facts involved in the said decision, to say the least, is not the judicial approach which can be upheld by the High Court. It only exhibits poor quality in deciding the case resulting in vitiating the order on this ground alone. The Tribunal may be bound by its own orders but if there are decisions of the Supreme Court and the High Court on that issue which have taken contrary view, then in such event, it is the duty of the Tribunal to ignore their own earlier view and follow the view taken by the Supreme Court and High Court which is binding on them. Even otherwise, there are long catena of decisions of the Supreme Court and the High Courts taking a view that the question as to whether a particular ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... their mind to the facts of the case saying that since none has appeared for the parties and, hence, we decline to answer the question shows that their Lordships declined to decide the application on the merits made under section 256(2) ibid and lastly no reasons have at all been shown for refusal to answer the reference application. In this view, the order shall not be of any binding nature. Such order, in our opinion, does not carry the issue anywhere. Dismissal of any application in default without applying the mind to the merits would not preclude us to examine these cases on the merits. It is much more so when we are satisfied that the questions of law do arise out of the order of the Tribunal. It is for all these reasons, we reject t ..... X X X X Extracts X X X X X X X X Extracts X X X X
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