Bombay H.C : Where Tribunal in impugned order had just followed its own earlier view and that too in relation to same assessee, appeal against order of Tribunal did not raise any substantial question of law

High Court Of Bombay

CIT vs. Deepak Fertilizers And Petrochemicals Corpn. Ltd.

Section : 260A, 254

C. Dharmadhikari And G.S. Kulkarni, JJ.

IT Appeal No. 5727 Of 2010

April  1, 2014

JUDGMENT

1. Having heard Mr. Pinto, learned counsel appearing on behalf of the appellant-Revenue, we are of the view that the appeal raises no substantial question of law.

2. It is rather disturbing and now established trend that whenever the Revenue files an appeal in relation to certain assessment year/s, in the memo of appeal filed before this court there is no explanation given as to why the assessment year/s in relation to which the Revenue has approached this court is chosen for filing the appeal. We have noted in the cases of several assessees that whenever the Commissioner of Income-tax (Appeals) and the Tribunal follows their own order for the preceding years or a view taken for the successive assessment years, the Revenue files an appeal concerning only the last assessment year for which the Tribunal delivered the order. There is absolutely no explanation as to why, when on the same facts the judgment and order of the Commissioner of Income-tax (Appeals) and the Income-tax Appellate Tribunal for earlier assessment years is accepted by the Revenue, an appeal is filed for the assessment year in question.

3. The view taken by the Tribunal either is erroneous or is in consonance with the prevailing law. Either way the Tribunal has not deviated from its earlier order on facts. If the matter is purely factual, then the Revenue cannot file an appeal when it accepts the view in relation to the preceding assessment years and pertaining to the very assessee. It is only when the Tribunal’s orders are based on law or on erroneous understanding or application thereof, that the hon’ble Supreme Court holds that the Revenue cannot be estopped from questioning the order of the Tribunal even though it has failed to file any appeal challenging the view of the Tribunal in relation to the preceding assessment year. Such is not the case before us. The Tribunal’s finding on fact has been consistent and from the assessment year 2001-02. Therefore, in relation to both the grounds which have been dealt with by the Tribunal all that it has done is that it followed its own earlier view and on facts, that too in relation to the same assessee. In such circumstances, the appeal does not raise any substantial question of law. It is accordingly dismissed.

4. A copy of this order be forwarded to the Commissioner of Income-tax (Judicial) so that hereinafter in all memos of appeal one would find an additional statement which would be in the nature of explanation given by the Revenue as to whether it has filed any appeal to this court in relation to the very assessee to challenge the Tribunal’s earlier order or orders of prior assessment year and the reason for not filing the same. There should be a statement as to whether the Tribunal’s order on facts has been accepted by the assessee or the Revenue. This order has to be passed because very often we find that such non-disclosure is fatal. This court then admits the appeals presumably on the question of law framed without noticing that in facts peculiar to the case of the assessee, the Revenue has accepted the view of the Tribunal throughout.

5. The appeal is dismissed. No costs.

[Citation : 363 ITR 484]