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TMI Blog1997 (11) TMI 75X X X X Extracts X X X X X X X X Extracts X X X X ..... d by a party does arise as a question of law arising from the order of the Tribunal, is it necessary for this court to perform the ritual of calling for the statement of the case and then answering the question ? Cannot this court straightaway answer the question and thereby avoid the time consuming process of performing its statutory obligation in two steps, while everybody is agreeable that the same result is capable of being achieved in one step only ? Both learned counsel have addressed us an the question. Section 256 of the Act reads as under : "256. Statement of case to the High Court.---(1) The assessee or the Commissioner may, within sixty days of the date upon which he is served with notice of an order under section 254, by a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sessee may, within thirty days from the date on which he receives notice of such refusal, withdraw his application, and, if he does so, the fee paid shall be refunded." The jurisdiction conferred on the High Court is an extraordinary advisory jurisdiction. It is neither an original jurisdiction nor an appellate one. The scope of hearing is confined to the aspects of law and law only. The question having been answered, section 260 of the Act obliges the Tribunal to give effect to the advice tendered by the High Court by passing such orders as are necessary to dispose of the case conformably with the opinion of the High Court as expressed in its judgment. The object is clear. So far as the facts are concerned, the word of the Tribunal is fi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... roach the High Court under sub-section (2). The High Court may direct the Tribunal to draw up a statement of the case and refer the question to it if it is not satisfied with the correctness of the decision of the Tribunal under sub-section (1). Obviously, it would be a case where the High Court would feel satisfied that the question of law does arise out of such order of the Tribunal as is referable to section 254. That being the position of law, two situations may emerge before the High Court allowing the application under sub-section (2) and issuing a mandamus to the Tribunal : (i) the High Court may find that the question sought to be referred is a question of law though not held to be so by the Tribunal ; (ii) the High Court may find ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... dure can be dispensed with by treating it as directory merely. In our opinion, when the facts are not disputed or the facts as found by the Tribunal and contained in its appellate order are enough to enable the question of law arising therefrom being appreciated and answered by the High Court, the High Court, instead of issuing a mandamus to the Tribunal and directing a statement of case to be drawn up and sent to the High Court, may straightaway proceed to answer the question. Two Division Bench decisions of the High Court of Orissa have been brought to our notice. In Maharana and Maharana v. State of Orissa [1991] 82 STC 242, dealing with a pari materia provision contained in the Orissa Sales Tax Act, 1947, their Lordships held: "Wh ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tion) [1995] 213 ITR 73. Their Lordships have termed the procedure presently prescribed by sub-section (2) of section 256 as an archaic procedure but being bound by the phraseology of the provision have felt helpless in making a departure from such procedure. We do not agree with the learned judges of the Kerala High Court holding themselves to be so much bound by the procedural aspect of section 256(2). In our opinion, the administration of justice has to keep pace with the march of the times. The nature of procedure prescribed by a statute---whether it is mandatory or directory merely---has to be judged by reference to the purpose sought to be achieved. We are very clear in our mind that when the facts of the case are either not dispute ..... X X X X Extracts X X X X X X X X Extracts X X X X
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