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Commissioner of Income-tax Vs. John Fowler (i) Ltd. and Others - Court Judgment

LegalCrystal Citation
SubjectDirect Taxation
CourtMumbai High Court
Decided On
Case NumberIncome-tax Reference Lodging Nos. 109, 202 and 211 in R.A. No. 484/Bom/ 1973-74
Judge
Reported in[1988]171ITR150(Bom)
ActsIncome Tax Act, 1961 - Sections 256(1) and 256(2)
AppellantCommissioner of Income-tax
RespondentJohn Fowler (i) Ltd. and Others
Excerpt:
.....of such failure. in the circumstances, the references are returned to the tribunal with the questions unanswered on the footing that the applicant commissioners have failed to prosecute the..........the tribunal made reference under section 256(1) of the income-tax act, 1961. in each of the matters, the tribunal has forwarded to the high court only the statement of case with a covering letter that the applicant, namely, the respective commissioner, has failed to supply the required annexures. thus, in these matters, right from the inception, the department has been a defaulter. in lodging no. 109, the statement of case was received by the office on april 5, 1980. nothing has been done by the department thereafter to supply the annexures. no other step has been taken to bring the reference to a hearing. in lodging no. 202, the papers, namely, the statement of case without the necessary annexures, were received by the office in august, 1977, which makes the situation even worse......
Judgment:

Desai, J.

1. These three references can be disposed of by a common order. Two of these are against the respondents who are limited companies, whilst in the third, the respondent is a person belonging to the Mafatlal family.

2. These three references reveal a very sorry state of affairs and gross negligence on the part of the respective Commissioners at whose instance the Tribunal made reference under section 256(1) of the Income-tax Act, 1961. In each of the matters, the Tribunal has forwarded to the High Court only the statement of case with a covering letter that the applicant, namely, the respective Commissioner, has failed to supply the required annexures. Thus, in these matters, right from the inception, the Department has been a defaulter. In Lodging No. 109, the statement of case was received by the office on April 5, 1980. Nothing has been done by the Department thereafter to supply the annexures. No other step has been taken to bring the reference to a hearing. In Lodging No. 202, the papers, namely, the statement of case without the necessary annexures, were received by the office in August, 1977, which makes the situation even worse. Last but not the least, in Lodging No. 211, the papers were received by the office in November, 1976, and thereafter for all these years the Department has done nothing.

3. We will not make the usual order of sending back the references without making one further comment. These are not matters where the Tribunal had initially declined to make a reference, but on an application made to the High Court, the High Court passed orders under section 256(2) of the Income-tax Act, 1961. In such cases, perhaps the Tribunal is right in observing as it does in the covering letter that the statement of the case was requited to be forwarded without the annexures, as in the opinion of the Tribunal 'there was no other remedy in the matter'. In our opinion, there was a clear remedy in these three matters for the Tribunal and we propose to indicate the same and the Tribunal will take it as directions given by the High Court. In all matters where the reference is made at the instance of the Commissioner or at the instance of the assessee and where the Tribunal is acting under section 256(1) of the said Act, that is, where there is no directive from the High Court which it is obliged to follow, the Tribunal shall not send the statement of the case simpliciter to the High Court without the annexures if there is default on the part of the applicant before the Tribunal in supplying the annexures. If, after due notice, the applicant fails to supply annexures, the Tribunal can, in our opinion, post the matter for directions before itself and revoke the order of reference by reason of such failure. It must, however, pass a brief order indicating the default. We are instructing the office that if hereafter such incomplete references are received from the Tribunal unaccompanied by the annexures, under section 256(1), the same shall be sent back to the Tribunal, as, in our opinion, such incomplete references ought not to be treated as references properly made at all.

4. There is one observation which is required to be made. On occasions where the assessee is the applicant and some of the annexures are sent to the Department for verification and/or attestation and in such a case the annexures could not be sent, this must not be deemed to be a default of the applicant but of the respondent-Department and the consequence we have indicated must not follow, for that would be visiting the applicant assessee with punishment for the default of the respondent.

5. In all the three matters, there is gross default on the part of the Department right from the very beginning. In the circumstances, the references are returned to the Tribunal with the questions unanswered on the footing that the applicant Commissioners have failed to prosecute the same.

6. Office to give effect to our order as far as possible by November 30, 1984.


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