Feb 2, 2016

Commissioner Of Income-Tax Versus Maharishi Ved Vigyan Vishwa Vidhya Peetham – Income Tax – DELHI High Court

Commissioner Of Income-Tax Versus Maharishi Ved Vigyan Vishwa Vidhya Peetham – Income Tax – DELHI High Court – 

HC – Jurisdiction Of High Court – 1997 (11) TMI 75 – DELHI High Court – [1998] 232 ITR 170, 150 CTR 194 – - – Dated:- 4-11-1997 – Judge(s) : R. C. LAHOTI., J. K. MEHRA JUDGMENT The judgment of the court was delivered by R. C. LAHOTI J.–An application under sub-section (1) of section 256 of the Income-tax Act, 1961, filed by the Revenue having been rejected by the Tribunal, the present application under sub-section (2) thereof has been filed before the High Court. On the last date of hearing, we posed a question to both learned counsel for the parties : if there be no dispute on the facts and this court forms an opinion that the question of law proposed by a party does arise as a question of law arising from the order of the Tribunal, is it necessary for this court to perform the ritual of calling for the statement of the case and then answering the question ? Cannot this court straightaway answer the question and thereby avoid the time consuming process of performing its statutory obligation in two steps, while everybody is agreeable that the same result is capable of being achieved in one step only ? Both learned counsel have addressed us an the question. Section 256 of the Act reads as under : 256. Statement of case to the High Court.–

(1) The assessee or the Commissioner may, within sixty days of the date upon which he is served with notice of an order under section 254, by application in the prescribed form, accompanied where the application is made by the assessee by a fee of two hundred rupees require the Appellate Tribunal to refer to the High Court any question of law arising out of such order and, subject to the other provisions contained in this section, the Appellate Tribunal shall, within one hundred and twenty days of the receipt of such application, draw up a statement of the case and refer it to the High Court : Provided that the Appellate Tribunal may, if it is satisfied that the applicant was prevented by sufficient cause from presenting the application within the period hereinbefore specified, allow it to be presented within a further period not exceeding thirty days. 

(2) If, on an application made under sub-section (1), the Appellate Tribunal refuses to state the case on the ground that no question of law arises, the assessee or the Commissioner, as the case may be, may, within six months 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 the Appellate Tribunal to state the case and to refer it, and on receipt of any such requisition, the Appellate Tribunal shall state the case and refer it accordingly. 

(3) Where in the exercise of its powers under sub-section (2), the Appellate Tribunal refuses to state a case which it has been required by the assessee to state, the assessee may, within thirty days from the date on which he receives notice of such refusal, withdraw his application, and, if he does so, the fee paid shall be refunded. The jurisdiction conferred on the High Court is an extraordinary advisory jurisdiction. It is neither an original jurisdiction nor an appellate one. The scope of hearing is confined to the aspects of law and law only. The question having been answered, section 260 of the Act obliges the Tribunal to give effect to the advice tendered by the High Court by passing such orders as are necessary to dispose of the case conformably with the opinion of the High Court as expressed in its judgment. The object is clear. So far as the facts are concerned, the word of the Tribunal is final. The High Court does not enter into the facts nor does it have jurisdiction to investigate the facts. If need be, such as where the statement of case made by the Tribunal is found to be deficient, the High Court may call for an additional statement of facts or may even direct the Tribunal to hold an inquiry and collect such additional information as may be required to provide foundation for answering the question posed before the High Court. It cannot be lost sight of that no question can be referred to the High Court unless it arises out of the order of the Tribunal (see CIT v. Scindia Steam Navigation Co. Ltd. [1961] 42 ITR 589 (SC). The statement of case obviously must be founded on the facts as found or on the findings as upheld by the Tribunal. The statement of case cannot travel beyond what has already been found by the Tribunal. Under sub-section (1) of section 256 abovesaid any question of law referred to the High Court has to be one arising out of an order of the Tribunal under section 254 of the Act. The Tribunal may reject the application under sub-section (1) of section 256, if it holds : (i) that the question sought to be referred is not a question of law, or (ii) that the question of law does not arise out of the order of the Tribunal. The latter situation would be one where the facts found by the Tribunal do not provide a foundation for such question of law being raised. Feeling aggrieved by the rejection under sub-section (1), the aggrieved party may approach the High Court under sub-section (2). The High Court may direct the Tribunal to draw up a statement of the case and refer the question to it if it is not satisfied with the correctness of the decision of the Tribunal under sub-section (1). Obviously, it would be a case where the High Court would feel satisfied that the question of law does arise out of such order of the Tribunal as is referable to section 254. That being the position of law, two situations may emerge before ………………
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