COMMISSIONER OF INCOME TAX Vs. WARNER HINDUSTAN LIMITED

JUDGEMENT

(1.) After hearing counsel for the parties on 14/06/1985, on this application by the Revenue, we had come to a conclusion that this is a fit case on which a certificate shall issue under section 261 of the Income-tax Act for appeal to the Supreme Court of India. However, the submissions of counsel for the Revenue raised a doubt whether a certificate could be issued confining it to some of the questions only in the case. The matter was posted for being mentioned on 5/07/1985, and J 12/07/1985.

(2.) We have heard counsel for the parties further on the question whether the certificate to be issued can be restricted to some questions only or it will relate to the judgment in the case referred ?

(3.) Nineteen questions relating to the assessment years 1970-71 and 1971-72 were referred by the Tribunal for the opinion of the High Court, questions Nos. 1 to 7 at the instance of the Revenue and questions Nos. 8 to 16 at the instance of the assessee. Four were answered in favour of the Revenue and thirteen in favour of the assessee. In view of the decisions on these, two questions were considered as academic. In its application, the Revenue has canvassed the correctness of answers in respect of only 14 questions, viz., 1 to 5, 7 to 11, 14, 16, 17 and 19 (thirteen answered against it and one considered academic) and requested for the issue of a certificate. The assessee has not applied for a certificate. Ten questions, viz., 2 to 5, 8, 9, 11, 16, 17 and 19 relate to relief under section 80J of the Act read with rule 19A. Following the earlier judgment of this court and also of other High Courts, we held that the retrospective effect given to the amended rule 19A was ultra vires. Some other points regarding interpretation and applicability of the provisions of section 80J and rule 19A were also decided. Relief under other provisions of section Act is involved in the remaining questions. After our decision, the Supreme Court, in its judgment in Lohia Machines v. Union of India [1985] 152 ITR 308, held that rule 19A as amended is not ultra vires. In view of this Supreme Court decision, our decision holding rule 19A as ultra vires cannot be said to be correct. Apart from an appeal on certificate under section 261, there is no statutory remedy for a party to have the effect of a judgment in reference rectified in such a situation. This itself is reason enough for the issued of a certificate under section 261.