TATA EXPORTS, V. DCIT 7(3),

MA 114/MUM/2013

• Counselvise Citation: [2016] 124 COUNSELVISE.COM (IT) 5121 (ITAT-MUMBAI)
• Duration Of Justice: 3 year(s) 9 month(s) 4 day(s)
• Appeal Type: Miscellaneous Application
• Pronouncement Date: 23-12-2016
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: A
• Next Hearing Date: 20-12-2013
• Assessment Year: misc
• Appeal Filed On: 19-03-2013
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: DINESH VYAS; AJIT SHAH ARS
• Assessee Lawyers: PEEYUSH SONKAR
• Keywords: Depreciation; Question of law; Competent authority
• Section: 56(2); 10

Judgement Text

, , IN THE INCOME TAX APPELLATE TRIBUNAL A BENCH, MUMBAI , !' # $% & ', ( !' ) BEFORE SHRI SANJAY ARORA, ACCOUNTANT MEMBER AND SHRI AMIT SHUKLA, JUDICIAL MEMBER M.A.NO. 114/MUM/2013 (R.A NO.218/BOM/1990) [I.T.A.NO. 1122/BOM/1985] ASSESSMENT YEAR : 1981-82 PRINCIPAL COMMISSIONER OF INCOME TAX 14, MUMBAI VS. TATA INTERNATIONAL LTD., MUMBAI. (FORMERLY KNOWN AS TATA EXPORTS LTD.), G-BLOCK, PLOT NO. C-60, 7 TH FLOOR, TRENT HOUSE, NEAR CITI BANK, BANDRA KURLA COMPLEX, MUMBAI 400 051. [PAN: AAACT 3198F] (APPLICANT) (RESPONDENT) *+, - . /PETITIONER BY : SHRI PEEYUSH SONKAR, DR */+0 - . /RESPONDENT BY : SHRI DINESH VYAS & AJIT SHAH, ARS 1# - % /DATE OF HEARING : 05-08-2016 23 - % /DATE OF PRONOUNCEMENT : 23-12-2016 / O R D E R PER SANJAY ARORA, AM : THE INSTANT PROCEEDINGS ARE PURSUANT TO THE REVENUE S APPLICATION DATED 19/3/2103 SEEKING RECALL OF THE TRIBUNALS ORDER DA TED 19/10/2012 DECLINING REFERENCE TO THE HONBLE HIGH COURT U/S. 256(2) OF THE INCOME TAX ACT, 1961 (THE ACT HEREINAFTER) CONSEQUENT TO THE LATTERS ORDER U/S. 256(2) DATED 01/4/1993. THE BASIC FACTS 2 M.A. NO. 114/MUM/2013 IN RA NO.218/BOM/1990 CIT V. TATA EXPORTS LTD. (NOW TATA INTERNATIONAL LT D.) 2. THE CASE HAS A LONG HISTORY. THE YEAR INVOLVED I S THE ASSESSMENT YEAR (AY) 1981-82. THE TRIBUNALS ORDER U/S. 254(1) WAS PASSED ON 18.8.1989, DISMISSING THE REVENUES APPEAL RAISING AS MANY AS FIVE GROUNDS. T HE REVENUE APPLIED FOR REFERENCE U/S. 256(1), RAISING THREE QUESTIONS OF L AW, AS UNDER: 1) ON THE FACTS AND CIRCUMSTANCES OF THE CASE , WHETHER THE TRIBUNAL WAS RIGHT IN LAW IN UPHOLDING THE ORDER OF THE CIT( A) GIVING A RELIEF OF RS.66,68,128/- U/S 35B WITH REGARD TO COMMISSION PA YMENTS WHICH WERE NOT ELIGIBLE FOR SUCH DEDUCTION? 2) ON THE FACTS AND CIRCUMSTANCES OF THE CASE , WHETHER THE TRIBUNAL WAS RIGHT IN LAW IN UPHOLDING THE ORDER OF THE CIT( A) DIRECTING THE ASSESSING OFFICER TO RECOMPUTED THE DEPRECIATION WI THOUT ADJUSTING THE COST OF THE ASSETS BY THE AMOUNT OF CENTRAL SUBSIDY RECEIVED BY THE ASSESSEE? 3) ON THE FACTS AND CIRCUMSTANCES OF THE CASE, WHETHER THE TRIBUNAL WAS RIGHT IN LAW IN UPHOLDING THE ORDER OF THE CIT( A) DIRECTING TO ALLOW RELIEF U/S 80HH AND SECTION. 80J WHEN THE SAME WAS NOT ALLOWABLE. FURTHER, WHETHER HE TRIBUNAL WAS RIGHT IN LAW IN UP HOLDING THE ORDER OF THE CIT(A) DIRECTING THE ASSESSING OFFICER TO ALLOW RELIEF U/S 80J IN RESPECT OF THE SHOE UPPER UNIT ON THE FOOTING THAT THE HEAD OFFICE CREDIT IS NOT A LIABILITY AND THAT NO PART OF SUCH CREDIT WAS OUT B ORROWINGS? THE SAME WAS DISMISSED BY THE TRIBUNAL VIDE ITS ORD ER DATED 03.9.1990 (IN RA NO.218/BOM/1990), OBSERVING THAT THE ISSUE I N Q. NO.2, I.E., WITH REGARD TO DEPRECIATION, STOOD CONCLUDED IN VIEW OF THE DECISI ON BY THE HON'BLE COURT IN CIT V. ELYS PLASTICS PVT. LTD . [1990] 188 ITR 11 (BOM) IN FAVOUR OF RESPONDENT- ASSESSEE. THE REVENUE MOVED THE HON'BLE HIGH COURT U/S. 256(2) OF THE ACT (UNDER LODGE NO.438 DATED 07.09.1991), CONTENDING THAT THE TRIBUNAL HAD FAILED TO APPRECIATE THE QUESTIONS INVOLVED IN THE PRESENT PR OCEEDINGS, SO THAT DIRECTIONS THERETO TO STATE THE CASE TO THE HON'BLE COURT ON T HE SAID QUESTIONS OR SUCH OTHER QUESTIONS AS IT MAY DEEM FIT AND PROPER, BE ISSUED. VIDE ITS ORDER DATED 01.4.1993 (IN INCOME TAX APPEAL NO.441/1992), THE HON'BLE HIGH COURT, AFTER HEARING THE PARTIES, ORDERED THAT THE RULE IS MADE ABSOLUTE IN RESPECT OF Q. NOS. 1 & 3 ONLY, THEREBY REQUIRING THE TRIBUNAL TO FRAME THE STATEME NT OF THE CASE IN RESPECT OF THE SAID QUESTIONS. THE TRIBUNAL, VIDE ITS ORDER DATED 1 9.10.2012 (UNDER SAME RA NO.), OBSERVED THAT THE REVENUE HAD NOT, AS REQUIRED BY R ULE 45 OF THE INCOME TAX (APPELLATE TRIBUNAL) RULES, 1963 (THE RULES HEREIN AFTER), FILED THE REQUIRED 3 M.A. NO. 114/MUM/2013 IN RA NO.218/BOM/1990 CIT V. TATA EXPORTS LTD. (NOW TATA INTERNATIONAL LT D.) ANNEXURES DESPITE A LAPSE OF 19 YEARS AND, ACCORDIN GLY, DECLINED REFERENCE, RELYING ON THE DECISION IN THE CASE OF CIT VS. POONAMCHAND MANMAL [1995] 216 ITR 373 (RAJ). THE OPERATIVE PART OF THE ORDER READS AS UND ER: [ 4. EVEN AFTER A PERIOD OF 19 YEARS THE REVENUE DI D NOT FILE THE ANNEXURES AS REQUIRED TO BE FILED UNDER RULE 45 OF THE APPELLATE TRIBUNAL RULES ( CIT VS. POONAMCHAND MANMAL [1995] 216 ITR 373 (RAJ). THEREFORE, THE REFERENCE APPLICATION WAS POSTED FOR FINAL HEARING ON 14.09.2 012 WITH A DIRECTION TO THE REVENUE TO EITHER FILE ANNEXURES OR TO WITHDRAW ITS REFERENCE APPLICATION FOR WANT OF AVAILABILITY OF ANNEXURES. 5. AT THE TIME OF HEARING THE LD. D.R. SUBMITS THAT THE APPLICANT IS UNABLE TO FURNISH THESE RECORDS AS THEY ARE NOT AVAILABLE. I N OUR OPINION, FINALIZATION OF THE DRAFT STATEMENT OF THE CASE WITHOUT ANNEXURES WOULD NOT SERVE ANY USEFUL PURPOSE AS THE HON'BLEBLE COURT WILL NOT BE ABLE T O ANSWER THE REFERENCE WITHOUT THE AID OF THE RELEVANT DOCUMENTS. WE, THEREFORE, I N EXERCISE OF THE POWERS VESTED IN US UNDER RULE 45 OF THE APPELLATE TRIBUNAL RULES , REJECT THE REFERENCE APPLICATION FOR WANT OF ANNEXURES. 6. IN THE RESULT, THE REFERENCE APPLICATION FILED B Y THE REVENUE IS DISMISSED. THE REVENUE HAS NOW, VIDE ITS APPLICATION DATED 19.3 .2013, MOVED THE TRIBUNAL, SEEKING RESTORATION OF ITS REFERENCE APPLICATION IN -AS-MUCH AS THE ANNEXURES, FOR WHAT OF WHICH THE SAME WAS DISMISSED IN THE FIRST P LACE, HAVE SINCE BEEN TRACED OUT. ANNEXURES IN THE FORM OF THE ASSESSMENT ORDER; CIT(A)S ORDER; AND TRIBUNALS ORDER WERE ENCLOSED ALONG WITH (PGS. 1-35 OF INDEX TO THE ANNEXURES). THE RESPECTIVE CASES 3. BEFORE US, THE HEARING, DUE TO FREQUENT CHANGE ON ACCOUNT OF ROTATIONAL ROSTER, OF THE DEPARTMENTAL REPRESENTATIVES (DRS), AS WELL AS CHANGES IN THE CONSTITUTION OF THE BENCH; THE ASSESSEE ALSO RAISIN G SEEKING ADJOURNMENTS AS WELL AS RAISING A HOST OF LEGAL ISSUES, SO THAT THE PROCEED INGS WITNESSED WRITTEN SUBMISSIONS AND REJOINDERS THERETO BY BOTH THE PARTIES, CONTINU ED FOR A LONG TIME. THOUGH RAISING A NUMBER OF ISSUES OBJECTING TO THE REVENUES APPLICATION, THE ASSESSEES PRINCIPAL OBJECTION IS THAT THE REVE NUES APPLICATION IS NOT MAINTAINABLE BEFORE US IN-AS-MUCH AS THERE IS NO PR OVISION IN LAW FOR RECTIFYING AN ORDER U/S. 254(2) IN RESPECT OF AN ORDER DISMISSING APPLICATION U/S. 256(2), AND FOR WHICH REFERENCE WAS MADE TO THE FOLLOWING DECISIONS : 4 M.A. NO. 114/MUM/2013 IN RA NO.218/BOM/1990 CIT V. TATA EXPORTS LTD. (NOW TATA INTERNATIONAL LT D.) A) MENTHA AND ALLIED PRODUCTS [244 ITR 470 (DEL)] B) DIT VS. ITAT [232 ITR 688 (DEL)] C) CIT VS. ITAT [227 ITR 443 (ALL)] D) KABIR DAS INVESTMENT [210 ITR 898 (DEL)] THERE IS IN FACT NO MISTAKE IN THE IMPUGNED ORDER, WITH THE TRIBUNAL EXERCISING ITS JUDICIAL DISCRETION U/S. 256(2) WHE N IT STATES THAT NO USEFUL PURPOSE WOULD BE SERVED AS THE HON'BLE HIGH COURT WOULD NOT BE ABLE TO ANSWER THE REFERENCE WITHOUT THE AID OF THE DOCUMENTS. THE TRIB UNAL HAVING DISCHARGED ITS OBLIGATION UNDER THE ACT, BECOMES FUNCTUS OFFICIO IN THE MATTER. THE ONLY REMEDY FOR THE REVENUE IS TO MOVE THE HON'BLE HIGH COURT U NDER ITS WRIT JURISDICTION, RELYING FOR THE PURPOSE ON THE FOLLOWING DECISIONS: A) POONAMCHAND MANMAL [216 ITR 373 (RAJ)] B) POONAM CHAND MANMAL TRUST [171 ITR 153 (RAJ)] C) STATE OF MP VS. HAJI HASAN [AIR 1966 (SC) 905] D) TULIP HOTELS VS. DY. CIT [15 ITR (TRI.) 548 (SB)] THE REVENUES CASE IS THAT THE TRIBUNAL, BY REFUSING REFERENCE U/S. 256(2) DID NOT DO SO ON MERITS BUT MERELY EXPRESSED ITS INABILITY TO, OR NON-PURPOSEFULNESS IN, MAKING REFERENCE IN THE ABSENCE OF THE ANNEXURES TO BE APPENDED TO THE STATEMENT OF THE CASE. THE SAME BEING NOW MADE AVAILABLE TO I T, IT IS OBLIGED IN LAW TO MAKE THE REFERENCE. THE IMPUGNED ORDER BE THEREFORE RECA LLED AND REFERENCE MADE, EVEN AS DIRECTED BY THE HONBLE HIGH COURT, RELYING FOR THE PURPOSE ON SECTION 256(2) AS WELL AS R. 45 OF THE RULES. 4. WE HAVE HEARD THE PARTIES, AND PERUSED THE MATER IAL ON RECORD, GIVING OUR CAREFUL CONSIDERATION TO THE MATTER. 4.1 SECTION 256(2) READS AS UNDER: CHAPTER XXC REFERENCE TO HIGH COURT STATEMENT OF CASE TO THE HIGH COURT 256. (1) . . . .. .. .. .. .. .. (2) IF, ON AN APPLICATION MADE UNDER SUB-SECTION ( 1), THE APPELLATE TRIBUNAL REFUSES TO STATE THE CASE ON THE GROUND THAT NO QUE STION OF LAW ARISES, THE ASSESSEE OR THE PRINCIPAL COMMISSIONER OR COMMISSIONER, AS THE CASE MAY BE, MAY, WITHIN SIX MONTHS 5 M.A. NO. 114/MUM/2013 IN RA NO.218/BOM/1990 CIT V. TATA EXPORTS LTD. (NOW TATA INTERNATIONAL LT D.) FROM THE DATE ON WHICH HE IS SERVED WITH NOTICE OF SUCH REFUSAL, APPLY TO THE HIGH COURT, AND THE HIGH COURT MAY, IF IT IS NOT SATISFIED WITH THE CORRECTNESS OF THE DECISION OF THE APPELLATE TRIBUNAL, REQUIRE APPELLATE TRIBUNAL TO S TATE THE CASE AND TO REFER IT, AND ON RECEIPT OF ANY SUCH REQUISITION, THE APPELLATE TRIB UNAL SHALL STATE THE CASE AND REFER IT ACCORDINGLY . THERE IS ACCORDINGLY NO JUDICIAL DISCRETION IN THE M ATTER AVAILABLE TO THE TRIBUNAL WHERE THE HONBLE HIGH COURT REQUIRES IT TO STATE T HE CASE AND MAKE REFERENCE THERETO. THE TRIBUNALS DECISION IN REFUSING TO STA TE THE CASE AS NO QUESTION OF LAW IN ITS OPINION AROSE, BEING FOUND AS INCORRECT BY THE HONBLE HIGH COURT, GETS SUPERSEDED BY OR MERGED IN THAT BY THE HONBLE COUR T, SO THAT IT PARTICULARLY IN ITS OPERATIVE PART, CAN NO LONGER BE READ IN ISOLATION OR INDEPENDENT OF THE ORDER BY THE HONBLE COURT, WHICH ALONE PREVAILS THEREAFTER. THE TRIBUNAL HAVING ALREADY DECIDED A MATTER ON THE BASIS OF A SET OF FACTS, PU RPORTEDLY APPLYING THE LAW IN THE MATTER, AS EXPLAINED BY THE HIGHER COURTS OF LAW (O R IN CASE THE ISSUE IS VIRGIN, BY ACCORDING ITS INTERPRETATION TO THE RELEVANT PROVIS ION/S OF LAW), IT IS OBLIGED IN LAW TO STATE THE SAME IN THE FORM OF A STATEMENT OF THE CASE ON BEING SO DIRECTED BY THE HIGH COURT. IN DOING SO IT ESSENTIALLY COMMUNICATES THE FACTS; THE BASIS OF THEIR DETERMINATION AS WELL AS THE RESPECTIVE CASES OF TH E PARTIES BEFORE IT, TO THE HON'BLE COURT TO APPRECIATE THE ISSUES ARISING FROM ITS ORD ER AND, FURTHER, IF THE QUESTIONS OF LAW BEING REFERRED DO INDEED REPRESENT THE QUESTION S OF LAW SO ARISING. WHY, THE HONBLE COURT IS FULLY COMPETENT TO REFRAME OR FORM ULATE DIFFERENT OR ADDITIONAL QUESTION/S OF LAW. THAT BEING THE CASE, NONE OF THE PARTIES ARE REQUIRED TO MOVE THE TRIBUNAL FOR THE PURPOSE, AND IT IS OBLIGED TO DO S O IN VIEW OF THE DIRECTIONS OF THE HON'BLE COURT, MAKING THE RULE ABSOLUTE. THAT IS, I T IS DUTY BOUND TO DO SO EVEN IF NONE OF THE PARTIES MOVE IT, OR DO NOT APPEAR BEFOR E IT, I.E., AFTER THE DIRECTIONS BY THE HON'BLE COURT U/S. 256(2). IN FACT, EVEN IN THE INSTANT CASE, THE ORDER DATED 19.10.2012 WAS RENDERED EX PARTE QUA THE RESPONDENT-ASSESSEE. THERE IS ACCORDINGLY NO QUESTION OF THE TRIBUNAL VIDE ITS OR DER DATED 19.10.2012 HAVING COMPLIED WITH THE DIRECTIONS BY THE HON'BLE HIGH CO URT OR OF HAVING (THUS) DISCHARGED ITS OBLIGATION UNDER THE ACT, OR BEING RENDERED FUNCTUS OFFICIO . R. 45 OF THE RULES, TO WHICH REFERENCE IS MADE, AND WHICH RE ADS AS UNDER, PROVIDES FOR ANY 6 M.A. NO. 114/MUM/2013 IN RA NO.218/BOM/1990 CIT V. TATA EXPORTS LTD. (NOW TATA INTERNATIONAL LT D.) FURTHER DOCUMENTS, I.E., APART FROM THAT PRESCRIBED U/R. 36, THAT IT MAY AT ITS OPTION CALL FOR AND APPEND IN THE FORM OF ANNEXURES TO THE STATEMENT OF THE CASE AS DRAWN, REQUIRING THE SAME FROM THE PARTIES AFTER DRAWING T HE SAID STATEMENT: WHAT TO ACCOMPANY THE STATEMENT OF THE CASE 45. THE TRIBUNAL SHALL APPEND TO THE STATEMENT DOCU MENTS WHICH, IN ITS OPINION, FOR PART OF THE CASE AND AS SUPPLIED TO IT BY THE PARTI ES. WITHIN SUCH TIME AFTER THE STATEMENT OF THE CASE IS DRAWN UP, AS THE TRIBUNAL MAY DIRECT , THE APPLICANT, OR THE RESPONDENT, AS THE CASE MAY BE, SHALL, IN ADDITION TO THE DOCUMENTS AL READY FILED IN ACCORDANCE WITH RULE 36, FILE AS MANY CERTIFIED COPIES OF THE DOCUMENTS WHIC H FORM ANNEXURES TO THE CASE, AS THE TRIBUNAL MAY DIRECT, AND IN CASE THE PARTY RESPONSIBLE FOR FILING DEFAUL TS, THE TRIBUNAL MAY SEND THE STATEMENT TO THE HIGH COURT WITHOUT AN NEXURES . [EMPHASIS, OURS] IN THE FACTS OF THE PRESENT CASE, THE TRIBUNAL DID NOT DRAW A STATEMENT OF THE CASE, EXPRESSING, IN EFFECT, ITS INABILITY TO DO SO FOR W ANT OF THE RELEVANT DOCUMENTS. THE LAW DOES NOT PRESCRIBE ANY TIME FRAME FOR THE PURPO SE. THERE IS NO QUESTION OF THE PROCEEDINGS GETTING TIME BARRED OR EVEN OTHERWISE H AVING THUS ATTAINED FINALITY. THE SAME WOULD GET REVIVED AS AND WHEN THE DEFICIENC Y, CAUSING THE SAID INABILITY, STANDS REMOVED. THAT IS, THE TRIBUNAL IS DUTY BOUND TO TAKE COGNIZANCE OF THE SAME, AND COMPLY WITH THE DIRECTIONS OF THE HON'BLE COURT ; THE STATED DEFICIENCY HAVING BEEN REMOVED. WE IN FACT HAVE ALREADY EXPRESSED THA T THE LAW DOES NOT BAR THE TRIBUNAL TO STATE THE CASE IN THE MANNER IT CONSIDE RS AS PROJECTING FAITHFULLY THE CONTROVERSY ARISING BEFORE IT AND BASIS OF ITS DEC ISION. THE ANNEXURES THUS PROVIDE, FOR THE READY REFERENCE OF THE HON'BLE HIG H COURT, THE BASIS OF THE VARIOUS FACTS AS WELL AS THE RESPECTIVE CASES OF THE PARTIE S, AS STATED IN THE STATEMENT OF CASE . IN THE PRESENT CASE, THERE IS IN FACT NO STATEMEN T OF THE CASE, TO SUPPORT WHICH THE ANNEXURES MAY BE APPENDED. RULE 45 OF THE RULES IN FACT EXPRESSLY PROVIDES FOR THE TRIBUNAL TO SEND THE STATEMENT OF THE CASE TO THE HIGH COURT IN THE EVENT OF A PARTY DEFAULTING IN FILING THE DOCUMENTS REQUIRED B Y IT, WITHOUT THE ANNEXURES. THAT IS, THE TRIBUNAL WAS UNDER NO OBLIGATION TO ALL OW A PERIOD OF 19 YEARS, AS IT STATES, TO THE REVENUE TO REMOVE THE DEFAULT. IN AN Y CASE, IT IS FOR THE HON'BLE COURT TO, ON THE REPRESENTATION BEING MADE BEFORE IT IN T HIS REGARD, PASS NECESSARY DIRECTIONS OR TAKE ANY VIEW IN THE MATTER. 7 M.A. NO. 114/MUM/2013 IN RA NO.218/BOM/1990 CIT V. TATA EXPORTS LTD. (NOW TATA INTERNATIONAL LT D.) 4.3 ALL THE DECISIONS RELIED UPON BY THE ASSESSEE A RE IN THE CONTEXT OF S. 256(1), WHERE A LITIGANT CALLS UPON THE TRIBUNAL TO FILE A REFERENCE TO THE HONBLE COURT. AS PER THE PROCEDURE, IT IS ONLY UPON BEING UNSUCCESSF UL THUS THE TRIBUNAL DECLINING REFERENCE AS IN ITS VIEW NO QUESTION OF LAW ARISES OUT OF ITS ORDER, THAT AN APPLICATION FOR REFERENCE COULD BE MADE DIRECTLY TO THE HON'BLE HIGH COURT. CLEARLY, THEREFORE, THE TWO CANNOT BE EQUATED OR EV EN REMOTELY BE CONSIDERED AT PAR. THE TRIBUNAL IN CONSIDERING AN APPLICATION U/S. 256(1) IS FULLY COMPETENT TO, EXERCISING ITS JUDICIAL DISCRETION, EITHER MAKE A REFERENCE OR DECLINE THE SAME, CALLING FOR SUCH RECORDS/DOCUMENTS AS IT MAY CONSID ER PROPER FOR THE PURPOSE, INCLUDING ALL OR ANY OF THEM - AT ITS OPTION, ALONG WITH THE STATEMENT OF CASE BY WAY OF ANNEXURES THERETO, I.E., WHERE A REFERENCE APPLI CATION IS ALLOWED BY IT. THE SAID CASE LAW WOULD THUS BE OF LITTLE CONSEQUENCE. THE HO NBLE HIGH COURT IN POONAMCHAND MANMAL (SUPRA) WAS AGAIN CONSIDERING A CASE OF REFUSAL BY THE TRIBUNAL TO MAKE A REFERENCE PURSUANT TO AN APPLICA TION THERETO U/S. 256(1). IN SUM 5. THE TRIBUNAL VIDE ITS ORDER DATED 19.10.12002 RE FUSING TO MAKE A REFERENCE TO THE HON'BLE HIGH COURT IN RESPONSE TO THE LATTERS ORDE R UNDER SECTION 256(2) OF THE ACT FOR WANT OF ANNEXURES TO BE APPENDED TO THE STATEMENT O F THE CASE REQUIRED TO BE FILED BY IT UNDER SECTION 256(2), THE REVENUE MOVED THE TRIBUNA L ON 19.03.2013, FILING THREE ORDERS, I.E., THE ASSESSMENT ORDER AND TWO APPELLATE ORDERS UP TO THE STAGE OF THE HIGH COURT. WE CANNOT SIT IN JUDGMENT AS TO WHETHER THE TRIBUNAL I N DISMISSING ITS APPLICATION AND IN THE MANNER DONE, WAS RIGHT IN-AS-MUCH AS IT HAVING DECIDED THE APPEAL, ALL THAT THE TRIBUNAL DOES THEREBY IS TO STATE THE FACTS OF THE CASE AS FOUND; THE BASIS ON WHICH THE SAME WERE DETERMINED BY IT, AS WELL AS THAT OF ITS DECI SION, IN THE FORM OF A STATEMENT OF THE CASE, SUPPORTING IT WITH SUCH DOCUMENTS AS IT MAY D EEM FIT AND PROPER, WITH THE TRIBUNALS ORDER AS WELL AS ORDER DISMISSING THE REVENUES APP LICATION U/S. 256(1) BEING AVAILABLE IN THE REFERENCE FILE FOLDER, WITH R.45 SPECIFICALLY R EQUIRING FILING THE STATEMENT OF THE CASE EVEN WITHOUT THE ANNEXURES. THOUGH IT COULD NO DOUB T BE ARGUED THAT THERE IS NO JUDICIAL DISCRETION AVAILABLE WITH THE TRIBUNAL U/S. 256(2) R/W R. 45 WHEN IT IS REQUIRED TO DRAW A STATEMENT OF THE CASE BY THE HONBLE HIGH COURT ACT ING U/S. 256(2), SO THAT THERE IS A 8 M.A. NO. 114/MUM/2013 IN RA NO.218/BOM/1990 CIT V. TATA EXPORTS LTD. (NOW TATA INTERNATIONAL LT D.) MISTAKE BY IT IN NOT MAKING THE REFERENCE, WE CONSI DER IT NOT NECESSARY TO DWELL ON THIS MATTER. THIS IS AS THE REVENUE HAS, ESCHEWING CONTR OVERSY, ACCEPTED THE TRIBUNALS ORDER, FURNISHING THE RELEVANT DOCUMENTS. THE ONLY QUESTION THAT THEREFORE ARISES IN THE MATTER IS IF THE REVENUES APPLICATION IS MAINTAINA BLE. NO TIME LIMIT BEING PRESCRIBED FOR COMPLETION OF PROCEEDINGS U/S. 256(2) OF THE ACT BE FORE THE TRIBUNAL, WE FIND NO LEGAL BAR TO THE SAME, WITH IN FACT THE ORDER IN THE FIRST IN STANCE HAVING BEEN PASSED AFTER 19 YEARS AFTER THE PASSING OF THE ORDER BY THE HON'BLE HIGH COURT REQUIRING THE TRIBUNAL TO FILE A STATEMENT OF CASE. A PERUSAL OF RECORD REVEALS THAT THE DELAY HAD OCCURRED AS THE RELEVANT FILES HAD BEEN WEEDED OUT BY THE TRIBUNAL, SO THAT THE DELAY WAS PERHAPS NOT ON ACCOUNT OF THE REVENUE. IN FACT, WE FIND NO MATERIAL ON RECORD EXHIBITING OR INDICATING REQUISITIONING ANY DOCUMENTS FROM THE REVENUE, I.E., BY THE TRIBUN AL, AT ANY STAGE . THE QUESTION, HOWEVER, IS NOT ON WHAT ACCOUNT THE DELAY OCCURRED, OR IF THE REFERENCE COULD HAVE BEEN MADE, BUT IF CAN BE MADE NOW. IF SO, WE SEE NO REAS ON AS TO WHY SHOULD THE REVENUES PLEA BE NOT ACCEPTED. THE EARLIER DISMISSAL CAN ONL Y BE REGARDED A SUMMARY DISMISSAL, AND DOES NOT AMOUNT TO A COMPLIANCE OF THE DIRECTIO N BY THE HONBLE COURT, WHICH WOULD ONLY BE UPON FILING A STATEMENT OF THE CASE, WHICH WAS NEVER PREPARED. THE ACT IN FACT DOES NOT CONTEMPLATE AN APPLICATION TO THE TRIBUNAL BY A PETITIONER U/S. 256(2). THE REVENUE HAS FILED THE ORDERS FORMING PART OF A REFE RENCE APPLICATION U/R. 36. LEGIBLE COPIES OF THE SAME ARE ON RECORD FILED ON 31/8/20 15; THE TRIBUNAL CALLING FOR A FRESH SET, EVEN AS WE FIND THAT ONLY ONE THE ASSESSMENT ORDE R, WAS NOT LEGIBLE IN PARTS. IN THIS REGARD WE MAY CLARIFY THAT THE ASSESSMENT ORDER ON RECORD IS THE FINAL ORDER, EVEN AS CONFIRMED BY US FROM THE PARTIES, SO THAT ORDER SHE ET ENTRY DATED 08/7/2016, SEEKING THE CORRECT COPY, ARISES OUT A WRONG NOTION. ON THE B ENCH FINALLY EXPRESSING ITS SATISFACTION, SO THAT THE MATTER COULD BE RECALLED FOR MAKING REFERENCE U/S. 256(2), COMPLYING WITH THE DIRECTIONS BY THE HON'BLE HIGH C OURT, THE ASSESSEE WOULD ARGUE THAT THE AGREEMENTS WOULD BE REQUIRED TO BE CONSIDERED FOR THE PURPOSE. THERE BEING NO REFERENCE TO ANY AGREEMENT IN THE ORDER S. 254(1), THE LD. COUNSEL WOULD SUBMIT THAT THE TRIBUNALS ORDERS FOR EARLIER YEARS, I.E., AYS 1978 -79 & 1979-80, AS WELL AS THE RELEVANT AGREEMENTS WOULD BE REQUIRED TO BE LOOKED AT. NO US EFUL PURPOSE, HE WOULD ADD, WITHOUT GOING THROUGH THOSE AGREEMENTS AND LOOKING INTO SOM E ASPECTS - WITH THERE BEING IN FACT SOME CHANGES FOR THE CURRENT YEAR, WOULD BE SERVED. WE ARE WHOLLY UNABLE TO APPRECIATE THE SAME. THE FACTS STAND ALREADY CRYSTALLIZED, AND IT IS ONLY THE QUESTIONS OF LAW ARISING 9 M.A. NO. 114/MUM/2013 IN RA NO.218/BOM/1990 CIT V. TATA EXPORTS LTD. (NOW TATA INTERNATIONAL LT D.) FROM THE SAID FACTS, AVAILABLE IN THE TRIBUNALS OR DER U/S. 254(1), THAT THE QUESTIONS OF LAW ARISING THERE-FROM, ALREADY FORMULATED, ARE RELEVAN T AND NEED TO BE ADDRESSED. IF THERE ARE ANY CHANGES IN THE AGREEMENT/S, THE SAME, TO BE TAK EN COGNIZANCE OF, OUGHT TO FIND REFLECTION IN THE TRIBUNALS ORDER FOR THE CURRENT YEAR, WHILE, AS IT APPEARS, THE TRIBUNAL PROCEEDED ON THE BASIS OF IDENTITY OF THE FACTS. HO W ELSE, ONE WONDERS, COULD THE TRIBUNALS ORDERS FOR THE EARLIER YEARS BE FOLLOWED , SO THAT THE ONLY IMPLICATION IS THAT EITHER THERE ARE NO CHANGES OR THAT THE SAME ARE NO T MATERIAL OR RELEVANT TO THE ISSUE/S AT LARGE. IN FACT, THE QUESTIONS REFERRED DO NOT INDIC ATE ANY COMPLEXITY OF FACTS; THE QUESTIONS REFERRED BEING ONLY PURE QUESTIONS OF LAW. BOTH FROM THE STAND POINT OF THE LAW AS WELL AS THE OBTAINING FACTS, WE THEREFORE CONSIDER IT INCUMBENT ON THE TRIBUNAL TO RECALL ITS ORDER AND FILE THE STATEMENT OF THE CASE WITH THE HONBLE HIGH COURT, COMPLYING THUS WITH ITS DIRECTIONS U/S. 256(2) GRANTING REFERENCE, ADMITTIN G QUESTION/S OF LAW. EVEN AS WE DO NOT FIND MUCH MERIT IN THE LEGAL OBJECTION OF TH E REVENUES APPLICATION HAVING NOT BEEN SIGNED BY THE COMPETENT AUTHORITY IN-AS-MU CH AS, AS CLARIFIED, THE TRIBUNAL IS REQUIRED TO MOVE ON ITS OWN AND NOT ON AN APPLIC ATION BY ANY OTHER PARTIES AND, FURTHER, THE PRESENT PROCEEDINGS ARE SHOWN TO HAVE BEEN AUTHORIZED BY THE CONCERNED COMMISSIONER (REFER: LETTER DATED 25/2/20 15 BY THE ASSESSING OFFICER (DY. CIT-14(3)(1), MUMBAI) (AO) TO THE SR. DR, FI LED ON 26/2/2015), THE SAME STANDS SINCE SATISFIED, WITH THE REVENUE FILING A F RESH APPLICATION ON 11.12.2015, SIGNED BY THE PR. CIT-14, MUMBAI, FILING ALONG WITH , BY WAY OF ANNEXURES, ALL THE ORDERS PASSED IN THIS CASE TO DATE (PGS. 1-59 OF TH E REVISED INDEX OF ANNEXURES). ANOTHER OBJECTION, STATING THAT THE DOCUMENTS FILED ARE NOT CERTIFIED TRUE COPIES AND, THEREFORE, CANNOT BE ADMITTED, STANDS ALSO TAK EN. EACH OF THE ORDERS FILED IS AUTHENTICATED BY THE AO, SIGNING, IN TOKEN THEREOF, ON ITS FIRST PAGE, WITH THE LD. DR AVERRING BEFORE US OF THE SAID ORDERS AS BEING ONLY AS PER THE REVENUES RECORD. THOUGH, SURELY, THE TRIBUNAL IS TO PROCEED ONLY ON T HE BASIS OF CERTIFIED DOCUMENTS, THE ATTESTATION BY THE AO AS WELL AS THE STATEMENT AT BAR BY THE LD. DR CANNOT BE DISCOUNTED. THE DOCUMENTS ARE NOT EXTERNAL EVIDENCE S AND, IN ANY CASE, VERIFIABLE FROM THE REVENUES RECORD. IN FACT, THE COPY OF THE TRIBUNALS ORDER U/S. 254(1) IS 10 M.A. NO. 114/MUM/2013 IN RA NO.218/BOM/1990 CIT V. TATA EXPORTS LTD. (NOW TATA INTERNATIONAL LT D.) THE SAME AS IN THE REFERENCE FILE FOLDER (IN RA NO. 218/BOM/1990), WITH REFERENCE TO WHICH THE ORDER DATED 19/10/2012 WAS PASSED BY T HE TRIBUNAL. WE ARE ACCORDINGLY INCLINED TO ACCEPT THE SAME, EVEN AS TH E BENCH HEARING THE REFERENCE PROCEEDINGS MAY CAUSE SUCH VERIFICATION THEREOF AS WOULD SATISFY THE PROCEDURE IN THIS REGARD, ALLAYING ANY DOUBT IN THE MATTER. AS I NDICATED ABOVE, THE REVISED COPIES OF BOTH, FORM 36 (MEMORANDUM OF APPEAL) AND MISCELL ANEOUS APPLICATION, BEARING THE CHANGED NAME OF THE RESPONDENT-COMPANY, WHICH CONTINUES IN LAW TO BE THE SAME ENTITY, STAND BROUGHT ON RECORD. IN OUR CLEAR VIEW, THE TRIBUNAL; THE DIRECTIONS BY THE HONBLE COURT BEING BINDING ON IT, IS BOUND TO ACCEPT THE REVENUES PLE A AND PROCEED ACCORDINGLY, DISCHARGING THUS BOTH ITS STATUTORY AND JUDICIAL O BLIGATION. RATHER, AS THE FACTS ON RECORD SUGGEST, NOT SO DOING WOULD IMPLY INJUSTICE, AS NO COURT OR TRIBUNAL COULD BY ITS ACTION (OR NON-ACTION) CAUSE PREJUDICE TO ANY P ARTY BEFORE IT, AS SIGNIFIED BY THE LEGAL MAXIM - ACTUS CURIAE NEMINEM GRAVABIT (ALSO REFER: HONDA SIEL POWER PRODUCTS LTD. V. CIT [2007] 295 ITR 466 (SC)). AGAIN, THE HON'BLE COURT HAVING ALREADY MADE THE RULE ABSOLUTE, THERE IS EQUALLY NO QUESTION OF INVOKING ITS WRIT JURISDICTION IN THE MATTER. ALL THE DECISIONS RELIE D UPON BY THE ASSESSEE ARE OF NO CONSEQUENCE AS NONE OF THEM OBLIGE THE TRIBUNAL TO DISREGARD EITHER THE CLEAR MANDATE OF LAW OF THE DIRECTIONS BY THE HONBLE HIG H COURT. THE TRIBUNAL IN DOING SO, WE MAY CLARIFY, DOES NOT ACT U/S. 254(2), BUT U /S. 256(2), AS IT DID WHILE PASSING THE ORDER DATED 19/10/2012, ACTING UNDER ITS INHERE NT POWERS. THAT THE PROCEEDING GOT MIRED IN A LABYRINTH OF ARGUMENTS AND COUNTER-A RGUMENTS, AND GOT DELAYED IS UNFORTUNATE IN-AS-MUCH AS NONE OF THEM ADDRESS THE BASIC ISSUES ARISING THE BINDING NATURE OF THE OBLIGATION ON THE TRIBUNAL ON CE THE HONBLE COURT DIRECTS FILING A REFERENCE. EVEN AS THE PRIME RESPONSIBILIT Y FOR THE DELAY MUST BE ASSUMED BY THE TRIBUNAL, PERFORMING A STATUTORY FUNCTION, O F WHICH REGARD MUST BE KEPT AT ALL TIMES, THE PARTIES, WHOSE COOPERATION IS FACILITATI VE OF THE PROCESS, MUST PARTAKE A FAIR SHARE THEREOF ONE OVER-ZEALOUS AND THE OTHER LAX. THERE CANNOT BE A QUIET BURIAL OF THE MATTER, PARTICULARLY WHEN SUBSTANTIVE RIGHTS ARE INVOLVED, AND PROCEEDINGS MUST RECEIVE THEIR LOGICAL CONCLUSION I N LAW. WE THEREFORE HAVE NO 11 M.A. NO. 114/MUM/2013 IN RA NO.218/BOM/1990 CIT V. TATA EXPORTS LTD. (NOW TATA INTERNATIONAL LT D.) HESITATION IN RECALLING THE TRIBUNALS ORDER U/S. 2 56(2) DATED 19.10.2012 REFUSING REFERENCE, FOR DRAWING UP A STATEMENT OF THE CASE A ND MAKE REFERENCE TO HON'BLE HIGH COURT IN PURSUANCE TO ITS ORDER U/S. 256(2) D ATED 01.4.1993. OF COURSE, THE PARTIES ARE ENTITLED TO BE HEARD WITH REGARD TO THE DRAWING OF THE STATEMENT OF THE CASE, A DRAFT OF WHICH, AS DRAWN, MAY BE SUPPLIED T O THE PARTIES FOR THE PURPOSE, I.E., BEFORE BEING FINALIZED. WE DECIDE ACCORDINGLY. 6. IN THE RESULT, THE REVENUES APPLICATION IS ALLO WED ON THE AFORE-STATED TERMS. ORDER PRONOUNCED ON DECEMBER 23, 2016 . SD/- SD/- ( $% & ' ) ( ) (AMIT SHUKLA) (SANJAY ARORA) ( !' /JUDICIAL MEMBER !' /ACCOUNTANT MEMBER / MUMBAI, 5!1 / DATED, THE 23 RD DECEMBER, 2016 . EDN. !& - *(%$6 763% / COPY TO: 1. +0 / APPELLANT 2. */+0 / RESPONDENT 3. 8% () / CIT(A) 4. 8% / CIT, 5. 6#;< *(%(1 / DR 6. <=, > / GF.