m/s shi vs. agar veg. restaurant mum

IN IN IN THE HIGH COURT OF JUDICATURE AT BOMBAY THE HIGH COURT OF JUDICATURE AT BOMBAY THE HIGH COURT OF JUDICATURE AT BOMBAY

ORDINARY ORDINARY ORDINARY ORIGINAL CIVIL JURISDICTION. ORIGINAL CIVIL JURISDICTION. ORIGINAL CIVIL JURISDICTION.

INCOME INCOME INCOME TAX APPEAL No. 144 OF 2006 TAX APPEAL No. 144 OF 2006 TAX APPEAL No. 144 OF 2006

M/s Shivsagar Veg. Restaurant

Mumbai.

... Appellant.

Vs.

Asstt. Commissioner of Income-tax,

24(2), Mumbai & Anr.

... Respondents.

Dr K.Shivram a/w Mr A.R.Singh for the Appellant.

Mr N. A. Kazi for the Respondent.

CORAM: CORAM: CORAM: DR. S.RADHAKRISHNAN DR. S.RADHAKRISHNAN DR. S.RADHAKRISHNAN

AND AND AND V.C.DAGA, JJ. V.C.DAGA, JJ. V.C.DAGA, JJ.

DATED: DATED: DATED: 14th November,2008. 14th November,2008. 14th November,2008.

JUDGMENT JUDGMENT JUDGMENT : : : (Per Vijay Daga)

-------- -------- --------

Heard the learned counsel for the parties.

Perused appeal.

Introduction Introduction Introduction : : :

------------ ------------ ------------

The Appellant- assessee is aggrieved by an

order

dated

21.10.2005

passed

the

Income-tax

Appellate

Tribunal,

Mumbai

Bench ‘G’,

Mumbai

(for

short

"Appellate Tribunal") in Income Tax Appeal

No.

5686/M/04 in respect of the assessment year 2001-2002.

We admit this appeal and frame the

following

substantial

question

law

for

consideration leaving all other questions open for CNR No : HCBM020041782006 Uploaded on - 21/08/2020 Downloaded on - 28/10/2026 05:50:48

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reconsideration since the matter is being remanded to

the Tribunal for the reasons recorded.

Substantial Substantial Substantial Question of Law : Question of Law : Question of Law :

--------------------------- --------------------------- ---------------------------

"Whether

the

impugned order passed

the

Appellate

Tribunal

after

more

than

four

months

from

the

date

hearing

without

dealing

with

propositions

and

case

laws

relied

the

Appellant suffers

from

non

application

of mind and non consideration of

material on record and therefore bad in law?"

Submissions Submissions Submissions and Consideration : and Consideration : and Consideration :

----------------------------- ----------------------------- -----------------------------

The learned counsel for the Appellant

brought

a disturbing state of affair to the notice of

this

Court

making

serious

complaint

that

the

Appellate

Tribunal

had heard the appeal on

2.6.2005

and

passed the order on 21.10.2005 i.e.

almost after

more

than four months, dismissing the appeal

without

recording reasons, discussing propositions of law

urged and case laws relied upon by the Appellant.

The learned counsel appearing for the

Revenue

found

it difficult to support

the

impugned

order for want of reasons and did not dispute that the

time

has

come

to issue certain

directions

the

Appellate

Tribunal laying down certain guide-lines in Uploaded on - 21/08/2020 Downloaded on - 28/10/2026 05:50:48

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the

matter

of early delivery of judgments

once

the

case

is closed for judgment.

He also did not dispute

the necessity of giving reasons in support of the

judgment.

Need Need Need to Give Reasons : to Give Reasons : to Give Reasons :

-------------------- -------------------- --------------------

It is needless to mention that the

Appellate Authority being the final authority of facts

incumbent upon it to appreciate the

evidence,

consider

the

reasons

of the authorities

below

and

assign its own reasons as to why he disagrees with the

reasons

and findings of the authority below.

Merely

because Tribunal happened to be an Appellate Authority

does not get right brush aside reasons or findings

recorded by the Frist Authority or the Lower Appellate

Authority.

It has to examine validity of the reasons

given

and findings recorded.

Mere recording that the

conclusions

arrived at did not require discussion

the

case

law

and other propositions of

law

consideration.

Merely by saying that the findings of

C.I.T.(A)

are

just, fair and in accordance with

the

law

can

hardly

tantamount to giving

reasons.

The

absence of reasons has rendered the impugned order of

the Tribunal unsustainable. Uploaded on - 21/08/2020 Downloaded on - 28/10/2026 05:50:48

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The reasons introduced clarity in an

order.

The requirement of indicating reasons has been

judicially

recognised as imperative by the Apex Court

in the case of Suga Ram v. State of Rajasthan Suga Ram v. State of Rajasthan Suga Ram v. State of Rajasthan (2006)

8 SCC 641.

The above view was reiterated by the Apex

Court

the

case of Jawahar Lal Singh

Naresh Jawahar Lal Singh

Naresh Jawahar Lal Singh

Naresh

Singh Singh Singh

(1987) 2 SCC 222.

The Court has also

referred

the

judgment of Lord Denning, M.R.

Breen

v. Lord Denning, M.R.

Breen

v. Lord Denning, M.R.

Breen

Amalgamated Amalgamated Amalgamated Engg.

Engg.

Engg.

Union,

Union,

Union, wherein the Court observed :

"The

giving of reasons is one of the fundamentals

good

administration".

Shri

Swamiji

v. Shri

Swamiji

v. Shri

Swamiji

Commissioner, Commissioner, Commissioner,

H.R.C.E.,

H.R.C.E.,

H.R.C.E.,

AIR 1980 SC 1,

the

Supreme

Court

noted

with approval the legal maxim

"cessante

ratione

legis cessat ipsa lex", which means reason is

the

soul of law and when reason of any particular law

ceases,

so does the law.

In State of West Bengal

v. State of West Bengal

v. State of West Bengal

Atul Atul Atul Krishna

Krishna

Krishna Shaw and Another,

Shaw and Another,

Shaw and Another, reported in AIR 1990 SC

2205,

Supreme Court of India, reiterated that

giving

reasons is an essential element of

administration

justice.

right to reason

is,

therefore,

indispensable part of sound system of judicial review.

Reasoned

decision

not only for

the

purpose

showing

that

the citizen is receiving

justice,

but Uploaded on - 21/08/2020 Downloaded on - 28/10/2026 05:50:48

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also

valid

discipline for

the

Tribunal

itself.

Therefore,

statement

reasons

one

the

essentials

of justice.

Judicial discipline to

abide

by declaration of law by this Court, cannot be

forsaken.

In the aforesaid view of the matter, the

importance

of reasoned order cannot be overlooked

any Court much less by the Income-tax Appellate

Tribunal.

10.

The basic rule of natural justice requires

recording

reasons in support of the

order.

The

order

has to be self-explanatory and should not

keep

the

higher

court

guessing

for

reasons.

Reasons

provide live link between conclusion and evidence that

vital

link

a safe guard

against

arbitrariness,

passion

and prejudice.

Reason is a manifestation

mind

adjudicator.

It is a tool for

judging

the

validity

the

order under

challenge.

gives

opportunity

to the higher court to see whether or not

the adjudicator has proceeded on the relevant

consideration, material and evidence. Uploaded on - 21/08/2020 Downloaded on - 28/10/2026 05:50:48

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11.

Having said so, the inordinate unexplained

delay in pronouncement of the impugned judgment has

also rendered it vulnerable.

12.

The learned counsel for the appellant has

referred

various judgments of the Apex

Court

well as of this Court and various other High Courts to

show that only on the ground of delay in rendering the

judgment

for

period ranging from four months

months,

judgments were held to be bad in law and

set

aside.

It has been held time and again that

justice

should not only be done but should appear to have been

done

and

that

justice delayed

justice

denied.

Justice

withheld

is even worse than that.

The

Apex

Court

the case of Madhav Hayawadanrao

Hoskot

v. Madhav Hayawadanrao

Hoskot

v. Madhav Hayawadanrao

Hoskot

State State State of

of Maharashtra,

Maharashtra,

Maharashtra, 1978 (3) SCC 544 had an occasion

take serious note of the prejudice normally caused

the

litigant

due

delayed

delivery

pronouncement

the judgment for the reasons

which

are not attributable either to the litigant or to the

State or to the legal profession.

13.

In R.C. Shama v. Union of India, R.C. Shama v. Union of India, R.C. Shama v. Union of India, 1976

(3)

SCC 474, the Apex Court after noticing absence of

the

provision

in the Code of Civil Procedure in

the Uploaded on - 21/08/2020 Downloaded on - 28/10/2026 05:50:48

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matter of time frame in delivery of judgment, observed

as under:

"Nevertheless,

think

tha

unreasonable delay between hearing of

arguments and delivery of a judgment,

unless explained by exceptional or

extraordinary circumstances, is highly

undesirable even where written arguments

are submitted. It is not unlikely that

some points which the litigant considers

important may have escaped notice. But,

what is more important is that litigants

must have complete confidence in the

results of litigation. This confidence

tends to be shaken if there is excessive

delay between hearing of arguments and

delivery of judgments. Justice, as we

have often observed, must not only be done

but must manifestly appear to be done."

14.

Recently, the Apex Court in the case of

Anil Anil Anil

Rai v.

State of Bihar,

Rai v.

State of Bihar,

Rai v.

State of Bihar, 2002 (3) BCR (SC) 360

2001

(7)

SCC 318 has also reconsidered

the

serious

issue

of delayed delivery of judgment by some of

the

High

Courts and laid down certain guide-lines in

the

matter of pronouncement of judgments by the High

Courts.

15.

In the case of Devang Rasiklal Vora v. Devang Rasiklal Vora v. Devang Rasiklal Vora v.

Union Union Union

of India,

of India,

of India, 2004 (3) BCR 450, the Division

Bench

of this Court to which one of us is a party (Daga, J.) Uploaded on - 21/08/2020 Downloaded on - 28/10/2026 05:50:48

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had

an occasion to issue directions to the

President

the

Central Excise and Gold

(Control)

Appellate

Tribunal, Mumbai to frame and lay down the guide-lines

the

similar lines as were laid down by

the

Apex

Court

the

case of Anil Rai v.

State

Bihar Anil Rai v.

State

Bihar Anil Rai v.

State

Bihar

(supra)

and

issue

appropriate

administrative

directions

all the Benches of the said

Tribunal.

The

similar guide-lines can conveniently be laid down

for

the

courts,

tribunals

and

quasi-judicial

authorities

prescribed under the Income Tax Act, 1960

("Act" for short) so as to prevent delayed delivery of

the

judgment and/or order which at the end of the day

results in denial of justice as happened in the

instant case.

16.

We, therefore, direct the President of the

Appellate

Tribunal

frame

and

lay

down

the

guidelines

the similar lines as are laid down

the

Apex

Court in the case of Anil Rai v.

State

of Anil Rai v.

State

of Anil Rai v.

State

Bihar Bihar Bihar

(supra) and to issue appropriate administrative

directions

to all the benches of the Tribunal in that

behalf.

hope and trust that suitable

guidelines

shall

framed and issued by the President

the

Appellate Tribunal within shortest reasonable time and

followed

strictly by all the benches of the Tribunal. Uploaded on - 21/08/2020 Downloaded on - 28/10/2026 05:50:48

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the

meanwhile, all the revisional

and

appellate

authorities

under the Income Tax Act are directed

decide matters heard by them within a period of three

months from the date case is closed for judgment.

17.

Now, turning to the merits of the

challenge

set up to the impugned order, prima

facie,

are satisfied that some of the vital points raised

this appeal and canvassed before us are not to

found

the

judgment

the

Appellate

Tribunal

though,

according

the learned

counsel

for

the

Appellant

and

borne out from the appeal

memo,

they

were

canvassed before the Tribunal.

Omission to make

reference

the contentions canvassed can

only

attributed

the delayed delivery of judgment.

the

circumstances,

without going into the merits

demerits

of the impugned order, delay in delivery

judgment

itself

is sufficient to set

aside

the

impugned order passed by the Appellate Tribunal to the

extent it is challenged by the Appellant.

18.

In the result, appeal is allowed. The

impugned

order

set

aside to the

extent

challenged.

The subject appeal, ITA

No.5686/M/2004.

is restored to the file of the Appellate Tribunal with Uploaded on - 21/08/2020 Downloaded on - 28/10/2026 05:50:48

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direction

rehear

the said appeal

filed

the

instance

of the present Appellant and decide the same

afresh

with

reasoned

order

dealing

with

all

contentions

raised

and canvassed on its own

merits.

All

the

rival

contentions are

kept

open.

Appeal

stands disposed of in terms of this order with no

order as to costs.

19.

The Prothonotary and Senior Master of this

Court is directed to forward the copy of this order to

the

President

the

Appellate

Tribunal

for

information,

record and action in accordance with the

direction

issued herein and for reporting

compliance

thereof within three months from the receipt of this

order.

(V.C.DAGA, (V.C.DAGA, (V.C.DAGA, J.) J.) J.)

(Dr.S.RADHAKRISHNAN, (Dr.S.RADHAKRISHNAN, (Dr.S.RADHAKRISHNAN, J.) J.) J.) Uploaded on - 21/08/2020 Downloaded on - 28/10/2026 05:50:48 Powered by TCPDF (www.tcpdf.org)