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TMI Blog2008 (11) TMI 8X X X X Extracts X X X X X X X X Extracts X X X X ..... gly dismissed - 2092/06 with1698/08, 1699/08, 2423/06, 682/07 - - - Dated:- 7-11-2008 - JUDGMENT Dr. ARIJIT PASAYAT, J. 1. Challenge in these appeals in each case is to the order passed by a Division Bench of the Allahabad High Court answering the reference made by the Income Tax Appellate Tribunal, Allahabad Bench (in short the `ITAT') under Section 256(1) of the Income Tax Act, 1961 (in short the `Act') in favour of the assessee and against the revenue. For answering the references in favour of the assessee the High Court relied upon its judgment for two previous assessment years i.e. 1972-73 and 1973-74 in the assessee's case which is reported in Commissioner of Income Tax v. J.K. Charitable Trust (1992 (196) IIR 31). The present ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... . Learned counsel for the revenue submitted that even though appeal has not been preferred in respect of some assessment years, that does not create a bar for the revenue filing an appeal for other assessment years. Reliance is placed on a decision of this Court in C.K. Gagadharan Anr. v. Commissioner of Income Tax [(2008)304 ITR 61 (SC)]. 5. The factual scenario is undisputed that for a large number of assessment years no appeal has been filed. 6. The basic question therefore is whether the revenue can be precluded from filing an appeal even though in respect of some other years involving identical dispute no appeal is filed. 7. For deciding the issue a few decisions of this Court need to be noted. 8. In Bharat Sanchar Nigam ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ll or under Article 32 in the peculiar circumstances mentioned in Hurra v. Hurra (2002 (4) SCC 388). As we have said, overruling of a decision takes place in a subsequent lis where the precedential value of the decision is called in question. No one can dispute that in our judicial system it is open to a court of superior jurisdiction or strength before which a decision of a Bench of lower strength is cited as an authority, to overrule it. This overruling would not operate to upset the binding nature of the decision on the parties to an earlier lis in that lis, for whom the principle of res judicata would continue to operate. But in tax cases relating to a subsequent year involving the same issue as an earlier year, the court can differ fro ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... by the State against judgments of the High Court, such SLPs may not be entertained by this Court in exercise of its discretionary jurisdiction under Article 136 of the Constitution either because they are considered as individual cases or because they are considered as cases not involving stakes which may adversely affect the interest of the State. Therefore, the circumstance of the non-filing of the appeals by the State in some similar matters or the rejection of some SLPs in limine by this Court in some other similar matters by itself, in our view, cannot be held as a bar against the State in filing an SLP or SLPs in other similar matters where it is considered on behalf of the State that non- filing of such SLP or SLPs and pursuing them ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... der of the High Court has not been filed, since larger public interest is involved in the interpretation given by the High Court following its earlier judgment, the matter requires consideration by this Court. We find force in this contention. In the similar circumstances, this Court in Digambar's case (supra) and in Debdas Kumar's case (supra) had held that though an appeal was not filed against an earlier order, when public interest is involved in interpretation of law, the Court is entitled to go into the question." 11. In Ramdeo's case (supra) reference was made to Debdas Kumar's case (supra) wherein it was observed at paragraph 5 as follows: "It is then contended that Section 3(2) and (3) make distinction between the employees co ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... different views and some of the High Courts have decided in favour of the revenue, same is a just cause for the revenue to prefer an appeal. 16. If the assessee takes the stand that the Revenue acted mala fide in not preferring appeal in one case and filing the appeal in other case, it has to establish malafides. As a matter of fact, as rightly contended by the learned counsel for the revenue, there may be certain cases where because of the small amount of revenue involved, no appeal is filed. Policy decisions have been taken not to prefer appeal where the revenue involved is below a certain amount. Similarly, where the effect of the decision is revenue neutral there may not be any need for preferring the appeal. All these certainly prov ..... X X X X Extracts X X X X X X X X Extracts X X X X
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