GEO SEA FOODS Vs. COMMISSIONER OF INCOME TAX

JUDGEMENT

(1.) ALL these petitions under S. 256(2) of the IT Act, 1961 arise out of a common order of the Tribunal in appeals filed by the assessee and by the Department relating to the asst. year 1974 75. Numerous points were in issue before the Tribunal. The matter was heard in the first instance by the two members constituting the Tribunal. They concurred on some points and differed on certain others. Copies of their separate orders dt. 22nd July, 1987 are Annexures C and D. Some of the points had been held against the Revenue by both the members and therefore the Revenue filed two reference applications R.A. Nos. 236 and 237 of 1987 to refer certain questions of law stated to arise out of the concurring orders of the two members. These reference applications were pending when the matter was heard on the points in difference by a third member to whom they were referred. He passed the order Annexure G giving his opinion on the points of difference. That was on 29th Jan., 1991. Consequential order incorporating his findings Annexure H was passed on 28th Feb., 1991. Thereupon and in view of certain findings against it the Revenue filed another application R.A. No. 69 of 1991 for referring certain questions of law arising out of that order. The assessee was also aggrieved by the finding rendered on the question of applicability of S. 144B in relation to the assessment in question which was one made after remand and therefore he also filed an application for reference raising the question of applicability of S. 144B to the proceeding.

(2.) ALL the reference applications were heard together by the Tribunal. In the meanwhile the Tribunal had directed the Revenue to file a consolidated statement styled as revised reference applications incorporating the questions which had been raised in the three reference applications filed by the Revenue. Such a statement was accordingly filed by the Revenue. When the matters came up for consideration before the Tribunal, a preliminary objection was raised that the questions sought to be raised in R.A. No. 236 and 237 of 1987 cannot be entertained for the reason that they had been filed at the intermediate stages of the appeals that they were not maintainable at that stage, that the Revenue had not sought reference of those questions after the order Annexure H was passed and therefore the only questions that could be dealt with for reference were those raised in the reference application filed after the date of Annexure H. This plea was not acceptable to the Tribunal and they held that all the questions raised were liable to be considered to see whether there was any referable question of law. The Tribunal however held by its order Annexure K that the questions raised were questions of fact not liable to be referred to this Court for opinion under S. 256(1) of the Act. The reference applications were therefore dismissed.

(3.) BEFORE us also Sri G. Sivarajan for the assessee raised a preliminary objection that this Court cannot deal with the questions raised in RA Nos. 236 and 237 of 1987 for the reason that those applications were misconceived and were not maintainable and if the Department decided to have the questions raised therein to be referred for the opinion of this Court, they should have sought reference of those questions as well in the reference application which they filed after the order Annexure H. We find it unable to accept this contention. What the two members who dealt with the appeal originally did by the orders Annexures C and D was to concur on certain points and to differ on certain others. So far as the concurring points are concerned, both the members stated that the appeals are partly allowed. It was apparently because of this statement appearing in the concluding portion of the orders that the Revenue sought to file the reference applications as soon as those orders were made. The reference applications were pending at the time when the appeals were finally disposed of by the order Annexure H and the subsequent reference application was filed. As stated earlier, all the three reference applications were dealt with together. The order of the Tribunal which has got to be considered by this Court for reference is one consisting of the two orders Annexures C and D, the order of the third member Annexure G and the consequential order Annexure H. So far as the earlier two reference applications are concerned, the only defect is that they were filed earlier at a time when the formal order disposing of the appeal had not been made. But the fact remains that the reference applications were filed earlier and were kept pending to await final disposal of the appeal. When the Revenue was undoubtedly entitled to file reference applications afresh within the period prescribed by S. 256 of the Act after the order Annexure H was passed, instead of formally filing an application afresh what the Department did was to pursue its earlier reference applications along with the new reference application which dealt with the question arising out of the orders Annexures G and H. We are not prepared to uphold the contention of the assessee that the questions raised in RA Nos. 236 and 237 of 1987 stand barred merely because the consolidated statement called for by the Tribunal was filed beyond the period prescribed by S. 256(1) after the order Annexure H. It may be noted that the reference applications were all along pending and the Revenue had pursued its remedies in relation to those applications. The fact that they were filed earlier because of the orders Annexures C and D cannot defeat the rights of the Revenue to have the question raised if really there was any question of law. We do not find any substance in the preliminary objection raised by Sri G.Sivarajan, counsel for the assessee.