THE COMMISSIONER OF INCOME TAX, TVM. vs. SHRI.B.MOHANACHANDRAN NAIR, MANGAD, KLM.

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ITA/48/2008HC KeralaKLHC01026953200804 August 2008Author: HONOURABLE THE CHIEF JUSTICE MR.H.L.DATTU,HONOURABLE MR.JUSTICE A.K.BASHEER3 pages

AI SummaryRemanded

What did the High Court hold?

The High Court declined to entertain the appeal. The Court noted that the ITAT had merely followed the dicta laid down by the jurisdictional High Court. The Court opined that if the Revenue believed the ITAT's order was contrary to the law laid down by the apex Court in the IPCA Laboratory's case, the appropriate course of action was to make an application before the ITAT itself, either for review or rectification of its order. The Court granted liberty to the Revenue to pursue such an application before the ITAT. The appeal was disposed of without a decision on the merits of the ITAT's order.

What were the facts?

The Revenue is appealing against an order dated June 12, 2003, passed by the Income Tax Appellate Tribunal (ITAT), Cochin Bench, for the assessment year 1992-93. The ITAT had decided the issues before it by following the decisions of the jurisdictional High Court. The appeal was filed before the High Court nearly five years after the ITAT order, reportedly due to non-payment of court fees. The Revenue's counsel informed the Court that the High Court's earlier view, which the ITAT followed, was not sustained by the Supreme Court in the case of IPCA Laboratory Ltd. v. Deputy Commissioner of Income Tax [(2004) 266 ITR 521].

What were the issues?

1. Whether the High Court should entertain the Revenue's appeal when the ITAT order was passed by following the jurisdictional High Court's earlier decisions, and the Revenue now claims those decisions are contrary to a subsequent Supreme Court ruling (IPCA Laboratory Ltd. v. Deputy Commissioner of Income Tax)? Assessee's contentions: Not recorded in the judgment. Revenue's contentions: The Revenue contended that the ITAT's order, which followed the High Court's earlier view, was not in line with the Supreme Court's decision in IPCA Laboratory Ltd. v. Deputy Commissioner of Income Tax [(2004) 266 ITR 521]. Therefore, the Revenue sought to challenge the ITAT's order before the High Court.

AI-generated summary — verify with the full judgment below

Cause title — parties, addresses and appearances

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE THE CHIEF JUSTICE MR.H.L.DATTU & THE HONOURABLE MR. JUSTICE A.K.BASHEER MONDAY, THE 4TH AUGUST 2008 / 13TH SRAVANA 1930 I.T.A.No. 48 of 2008 -------------------------------- AGAINST THE ORDER DATED 12/06/2003 IN ITA.38/2000 OF THE INCOME TAX APPELLATE TRIBUNAL, COCHIN BENCH, COCHIN .................... APPELLANT/APPELLANT: ----------------------------------- THE COMMISSIONER OF INCOME TAX, THIRUVANANTHAPURAM. BY ADV. SRI.GEORGE K. GEORGE, STANDING COUNSEL FOR INCOME TAX DEPARTMENT RESPONDENT/RESPONDENT: ------------------------------------------- B.MOHANACHANDRAN NAIR, PRASANTHI CASHEW CO., MANGAD, KOLLAM. THIS INCOME TAX APPEAL HAVING COME UP FOR ADMISSION ON 04/08/2008, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: H.L.DATTU, C.J. & A.K.BASHEER, J. ------------------------------------------- I.T.A.No.48 of 2008 ------------------------------------------ Dated, this the 4th day of August, 2008

JUDGMENT H.L.Dattu, C.J. The Revenue is before us in this appeal, being aggrieved by the orders passed by the Income Tax Appellate Tribunal, Cochin Bench, in I.T.A.No.38 of 2000, for the assessment year 1992-93. The order passed by the Tribunal is dated 12th June, 2003. 2. The Tribunal while deciding the issues raised by the Revenue before it, had answered those issues following the dicta laid down by the jurisdictional High Court.

For the first time, nearly after five years, the matter is coming up for admission before us. This was only because of the non- payment of the court fee by the Revenue. If for any reason, the appeal had come before us immediately after it was filed before this Court, our answer would have been to accept the reasoning of the Tribunal for the reason that the Tribunal had merely followed the dicta laid down by this Court.

Now it is brought to our notice by the learned counsel appearing for the Department that the view expressed by this Court is not sustained by the apex Court in the decision rendered in the case of I.T.A.No.48 of 2008 2 IPCA Laboratory Ltd. v. Deputy Commissioner of Income Tax [(2004) 266 ITR 521]. In our opinion, if for any reason the Department is of the opinion that the reasoning and conclusion reached by the Tribunal is contrary to the law laid down by the apex Court in the case of IPCA Laboratory's case, the Revenue has to make an appropriate application before the Tribunal, either for review or rectification of its order.

In that view of the matter, we decline to entertain this appeal. Accordingly, the appeal is disposed of. However, we grant liberty to the Revenue to make an appropriate application/review petition before the Tribunal for appropriate orders. Ordered accordingly.

(H.L.DATTU) CHIEF JUSTICE

(A.K.BASHEER) JUDGE vns

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