Kerala H.C : The senior standing counsel for the Government of India (Taxes) takes notice on behalf of the respondents.

Counsel Appeared

C. Kochunni Nair, G. Sivarajan, S. Santosh Kumar & M.P. Vinod, for the Assessee : Senior Standing Counsel, for the Revenue

P. C. BALAKRISHNA MENON, J.:

The senior standing counsel for the Government of India (Taxes) takes notice on behalf of the respondents.

By this writ petition, the petitioner seeks the issue of a writ of mandamus directing the first respondent, the Tribunal, to ignore the judgment in IT Ref. No. 121 of 1981 and pass final orders in I.T.A. No. 133 of 1978-79 under s. 260(1) of the IT Act in conformity with a subsequent decision of a Full Bench of this Court in CIT vs. Issac (1987) 168 ITR 793 (Ker) : TC49R.1165. The decision in IT Ref. No. 121 of 1981 is inter partes on a reference made by the Tribunal, Cochin Bench, at the instance of the Revenue. The question was whether the IAC had jurisdiction to impose penalty under s. 271(1)(c) of the IT Act after sub-s. (2) of s. 274 was omitted by the Taxation Laws (Amendment) Act, 1975, which came into force on 1st April, 1976. This Court, following an earlier Division Bench decision IT Ref. No. 1 of 1979 reported in P.M. Kunhimuhammed & Bros. vs. CIT (1985) 152 ITR 691 (Ker) : TC49R.1164, held that the IAC continues to have jurisdiction even after the deletion of sub-s. (2) of s. 274 and the reference was accordingly answered in favour of the Revenue. A Full Bench of this Court in Issac’s case (supra), has, however, taken the view that the IAC ceased to have jurisdiction to impose penalty under s. 271(1)(c) of the IT Act after sub-s. (2) of s. 274 was omitted by the Taxation Laws (Amendment) Act, 1975. Since the appeal is even now pending before the first respondent Tribunal, the petitioner seeks a direction for its disposal in accordance with the later decision in Issac’s case (supra).

As earlier stated, the decision in IT Ref. No. 121 of 1981 is inter partes and the Tribunal is bound to pass final orders in conformity with the judgment therein. Sub-s. (1) of s. 260 of the IT Act expressly enjoins the Tribunal to “pass such orders as are necessary to dispose of the case conformably to such judgment”.

Counsel for the petitioner points out that the decision of this Court under s. 259 of the IT Act on a reference made by the Tribunal under s. 256 is only advisory and when a Full Bench of this Court had laid down the law, it is only proper that this Court gives a direction to the Tribunal to pass final orders in accordance with the decision of the Full Bench. Counsel relies on the decision of the Supreme Court in CIT vs. Bansi Dhar & Sons (1986) 50 CTR (SC) 250 : (1986) 157 ITR 665 (SC) : TC55R.783, wherein it is stated at page 672. “15. After the High Courts and, in cases of appeals to the Supreme Court, the Courts answer the question in any manner or give certain opinion, the Tribunal would dispose of the appeals in accordance with the opinions expressed or answers given by the High Courts or the Supreme Court. Therefore, under the scheme, the appeal is kept pending before the Tribunal and appellate jurisdiction is retained by the Tribunal, but the High Court exercises an advisory or consultative jurisdiction.”

The question before the Supreme Court was whether it is proper for the High Court in a pending reference to pass interlocutory orders granting stay of recovery of the tax assessed. The Supreme Court held that the jurisdiction being consultative or advisory, it is not proper to pass orders of stay especially when the appeal itself is pending before the Tribunal awaiting the judgment of the High Court on the reference made. This decision is not an authority for the proposition that the High Court should as and when it takes a different view on the question of law earlier decided on reference made to it direct the Tribunal to ignore the decision inter partes and dispose of the appeal in accordance with the later view.

Counsel relies also on the following passage in Salmond on Jurisprudence, 12th Edn., at s. 26, page 148 : “As we have seen, the theory of case law is that a judge does not make law; he merely declares it; and the overruling of a previous decision is a declaration that the supposed rule never was law. Hence any intermediate transactions made on the strength of the supposed rule are governed by the law established in the overruling decision. The overruling is retrospective, except as regards matters that are res judicata or accounts that have been settled in the meantime.”

The above passage itself adverts to matters that are res judicata as an exception to the general rule mentioned therein. This Court cannot in exercise of its jurisdiction under Arts. 226 and 227 of the Constitution give a direction to the first respondent-Tribunal to decide the appeal contrary to s. 260(1) of the IT Act.

Counsel relies on the observations of the Supreme Court in Madras Port Trust vs. Hymanshu International AIR 1979 SC 1144, in support of the proposition that the State or the Revenue should not take up technical pleas to defeat the just rights of the citizens. That may be a good answer against a technical plea if the petitioner seeks appropriate remedies available at law.

This original petition is misconceived and is accordingly dismissed.

No costs.

[Citation : 171 ITR 519]