Uttarakhand H.C : single appeal is permissible against several orders if there is common grounds that affects all the orders of ITAT

High Court Of Uttarakhand

Director, Income-tax (International Taxation) vs. Transocean Offshore International Ventures Ltd.

Section : 260A

Assessment year : 2006-07

Barin Ghosh, C.J. And Servesh Kumar Gupta, J.

ITA No. 25 Of 2010

July 13, 2011

JUDGMENT

Barin Ghosh, C.J. – In respect of the assessment year 2006-07, several assessment orders were passed in relation to several employees of the assessees. In relation to those assessment orders, common questions of law arose. Appeals were preferred against those assessment orders. Those were decided by a single order. Against the appellate order, several appeals were filed before the Tribunal. Those were dealt with by a common order by the Tribunal. Thus, whereas there were several assessment orders against each of the respondent-assessees in respect of their employees, there was one common appellate order in respect of each of the respondent-assessees although there were several appeals and, at the same time, there was one common order of the Tribunal in respect of each of the assessees despite there being several appeals before the Tribunal. Aggrieved by those four several orders of the Tribunal, four appeals, presently being dealt with, have been filed by the Department and not several appeals. For that reason, an objection has been taken by the respondents that the appeals are not maintainable.

2. Heard learned counsel for the parties on the objection.

3. There is a judgment of the Calcutta High Court, on the point, rendered in the case of CIT v. Tata Tea Ltd. [2005] 272 ITR 42  (Cal). There the hon’ble court pronounced that it is unable to accept the contention that only one appeal is permitted by reason of the expression used under section 260A of the Income-tax Act, 1961 (hereinafter referred to as “the Act”) against the consolidated order, whether it includes several years of assessment of the same assessee or one or more of different assessees. The hon’ble court, however, did not declare that the appeals it was considering following the practice and procedure followed in that court as incompetent. The court noted that when section 253 of the Act was in vogue, a Division Bench of the court issued a direction on February 3, 1992 that, against one consolidated order of the Tribunal, only one application for reference shall be filed covering all the assessment orders involved and no separate application shall be filed and that, in terms thereof, even after introduction of section 260A in the Act, the same procedure continued to be followed in appeals under section 260A of the Act. The court held that the practice and procedure for reference cannot be inducted in respect of appeals and that as soon as the Civil Procedure Code applies, the appeal against a consolidated order will relate to each individual case though the order might dispose of more than one. It held that when more than one appeal or suit are disposed of by a common judgment the order pursuant to the common judgment affects each individual case/appeal and, as such, there cannot be one appeal against a consolidated order. It was, however, declared that the practice and procedure followed so long by reason of the direction dated February 3, 1992 by the Division Bench should be treated as an addition to the rules made by the High Court in relation to preferring of appeals and cannot be questioned. It held that such practice cannot be followed ipso facto in the case of appeals under section 260A of the Act in view of the basic difference in jurisdiction exercised by the High Court on a reference under section 256 and those on appeals under section 260A. It held that, for the sake of convenience, one appeal may be filed in which different assessees may join to espouse their respective cases in respect of the respective assessment years, but such an appeal remains to be preferred against each of the orders passed in each of the assessments or appeals even if one memorandum of appeal is filed. The same represents or relates to the causes of action or assessments of different assessees and also allows such different assessees to espouse their respective causes in the respective appeals, though decided by a common judgment. It pronounced that, accordingly, consolidated appeals represent different causes of action giving rise to separate appeals since consolidated into one and, therefore, court fee would be payable in respect of each appeal under section 260A of the Act against each assessment year and concerning each assessee, since consolidated. In that case, the court was concerned with liability to pay court fees in respect of different appeals consolidated into one.

4. It was contended that the said case was principally decided on the basis of the practice followed in the High Court. We think that the hon’ble court, in the said judgment, clearly decided that consolidation of appeals into one is permissible.

5. In Mt. Lachhmi v. Mt. Bhulli, AIR 1927 Lahore 289, two widows were jointly in possession of certain land. Each sued the other for declaration that she was the exclusive owner of that land and the other had no right to it of any kind. Both the suits were disposed of by a single judgment, which decided that one widow was the owner and the other widow was entitled to hold possession of half of the land in lieu of maintenance. Separate decrees were drawn up in each suit. One of the widows appealed against the decree given in the suit filed by her. At the hearing of that appeal, it was contended that the appeal is not maintainable for not preferring an appeal against the other decree, in which the appellant was the defendant, as that decree operates as res judicata. The court held that the determining factor is not the decree, but the decision of the matter in controversy. In other words, judgment is the soul of the decree/order. It also held that, in India, there is no specific provision for consolidation of suits, but since the Code is silent on the point, the inherent jurisdiction of the court to pass an order of consolidation has not been taken away. The court further observed that seldom a formal order consolidating suits or appeals is passed, but the object is attained by two suits being tried together by consent of the parties and with the approval of the court bringing about a de facto consolidation, which results in one trial and one judgment and that a person, who, by his conduct, has brought about a virtual consolidation of two suits ought not to be allowed to turn around with a view to prevent hearing of the appeal against the judgment delivered in the consolidated suit.

6. This judgment of the High Court at Lahore was upheld by the hon’ble Supreme Court in Narhari v. Shanker, AIR 1953 SC 419.

7. In K. G. Khosla and Co. (P) Ltd. v. Deputy Commissioner of Commercial Taxes [1966] 17 STC 473 (SC), two orders were passed, one under the Madras Sales Tax Act and the other under the Central Sales Tax Act. Two appeals were filed before the Tribunal. Against the decision of the Tribunal, the Department as well as the assessee filed two revisions each to the High Court. The High Court disposed of the same by a common order. The assessee, thereafter, filed two appeals before the hon’ble Supreme Court. An objection was raised stating that four appeals, and not two, should have been filed. The hon’ble Supreme Court repelled the contention. Similar view has also been expressed in Chandra Bhan Gosain v. State of Orissa [1963] 50 ITR 195 (SC).

8. Considering the judgments referred to above, we are of the view that if, by conduct, appeals are consolidated at the appellate stage and the appellate authority is invited to render one judgment to dispose of all the appeals by a common judgment, may be several decrees/orders are required to be passed to dispose of those appeals, but since each of them would be supported by the common judgment, in the event, the common judgment is interfered with, those orders would lose their soul and would collapse forthwith like a body without soul. Accordingly, one appeal, according to us, is maintainable against a common judgment, but, however, the appellant would be required to pay court fees as is payable in accordance with the provisions of the applicable Court Fees Act in respect of each appeal, which stands consolidated by the common judgment against which an appeal has been preferred.

9. We, accordingly, hold that the appeals, in their form, are maintainable. We, however, direct the appellant to pay court fees in respect of each of the orders of the Tribunal affecting each of the assessment orders, if not paid already, as quickly as possible, but not later than three months from today. The objection to the maintainability of the appeals is, accordingly, disposed of.

[Citation : 336 ITR 637]

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