Sangam Cold Storage and Ice Factory Vs. Commissioner of Income-tax - Court Judgment

Excerpt:
- sections 100-a [as inserted by act 22 of 2002], 110 & 104 & letters patent, 1865, clause 10: [dr. b.s. chauhan, cj, l. mohapatra & a.s. naidu, jj] letters patent appeal order of single judge of high court passed while deciding matters filed under order 43, rule1 of c.p.c., - held, after introduction of section 110a in the c.p.c., by 2002 amendment act, no letters patent appeal is maintainable against judgment/order/decree passed by a single judge of a high court. a right of appeal, even though a vested one, can be taken away by law. it is pertinent to note that section 100-a introduced by 2002 amendment of the code starts with a non obstante clause. the purpose of such clause is to give the enacting part of an overriding effect in the case of a conflict with laws mentioned with the non obstante clause. the legislative intention is thus very clear that the law enacted shall have full operation and there would be no impediment. it is well settled that the definition of judgment in section 2(9) of c.p.c., is much wider and more liberal, intermediary or interlocutory judgment fall in the category of orders referred to clause (a) to (w) of order 43, rule 1 and also such other orders which poses the characteristic and trapping of finality and may adversely affect a valuable right of a party or decide an important aspect of a trial in an ancillary proceeding. amended section 100-a of the code clearly stipulates that where any appeal from an original or appellate decree or order is heard and decided by a single judge of a high court, no further appeal shall lie. even otherwise, the word judgment as defined under section 2(9) means a statement given by a judge on the grounds of a decree or order. thus the contention that against an order passed by a single judge in an appeal filed under section 104 c.p.c., a further appeal lies to a division bench cannot be accepted. the newly incorporated section 100a in clear and specific terms prohibits further appeal against the decree and judgment or order of a single judge to a division bench notwithstanding anything contained in the letters patent. the letters patent which provides for further appeal to a division bench remains intact, but the right to prefer a further appeal is taken away even in respect of the matters arising under the special enactments or other instruments having the force of law be it against original/appellate decree or order heard and decided by a single judge. it has to be kept in mind that the special statute only provide for an appeal to the high court. it has not made any provision for filing appeal to a division bench against the judgment or decree or order of a single judge. no letters patent appeal shall lie against a judgment/order passed by a single judge in an appeal arising out of a proceeding under a special act. sections 100-a [as inserted by act 22 of 2002] & 104:[dr. b.s. chauhan, cj, l. mohapatra & a.s. naidu, jj] writ appeal held, a writ appeal shall lie against judgment/orders passed by single judge in a writ petition filed under article 226 of the constitution of india. in a writ application filed under articles 226 and 227 of constitution, if any order/judgment/decree is passed in exercise of jurisdiction under article 226, a writ appeal will lie. but, no writ appeal will lie against a judgment/order/decree passed by a single judge in exercising powers of superintendence under article 227 of the constitution. - jindal brothers rice mills in spite of the fact that against the said judgment the punjab and haryana high court has granted a certificate under section 261 of the income-tax act holding that it is an interesting and important question of law ?' 3. the petition filed by the assessee under section 256(1) of the act was delayed by 23 days, and the same was dismissed by the tribunal, both on the ground of delay in filing the petition as well as on the merits. [1994]210itr830(sc) .8. keeping in view the peculiar facts and circumstances of the case and particularly the fact that on the merits the assessee has a strong case, we accept the request of counsel for the assessee and permit him to challenge the portion of the order of the tribunal declining to condone the delay in filing the petition under section 256(1) of the act, the copy of which has been attached as annexure p4 with itc no.ashok bhan, j.1. we take up i. t. c. no. 40 of 1994 and c. w. p. no. 6685 of 1997 together for disposal as the facts of both these cases are interconnected.2. the assessee filed its return of income for the assessment year 1982-83 declaring net loss of rs. 7,28,830. the income-tax officer reduced the amount of subsidy from the cost of building and machinery for the purposes of depreciation. the assessee filed an appeal before the commissioner of income-tax (appeals), which was accepted. against the order of the commissioner of income-tax (appeals), the revenue filed an appeal before the income-tax appellate tribunal, amritsar bench, amritsar. the tribunal set aside the order of the commissioner of income-tax (appeals) and restored the order of the assessing officer. the assessee filed a petition under section 256(1) of the income-tax act, 1961 (hereinafter referred to as 'the act'), claiming the following questions of law, said to be arising from the order of the tribunal passed under section 254 of the act :'1. whether, on the facts and in the circumstances of the case, the tribunal was right in holding that the subsidy received by the assessee has to be adjusted from the cost of assets on which it was given for the purpose of allowing depreciation following the punjab and haryana high court judgment in the case of cit v. jindal brothers rice mills ? 2. whether the tribunal was right in following the judgment of the punjab and haryana high court in the case of cit v. jindal brothers rice mills in spite of the fact that against the said judgment the punjab and haryana high court has granted a certificate under section 261 of the income-tax act holding that it is an interesting and important question of law ?'3. the petition filed by the assessee under section 256(1) of the act was delayed by 23 days, and the same was dismissed by the tribunal, both on the ground of delay in filing the petition as well as on the merits. on the merits, the tribunal held that the questions of law claimed by the assessee were covered by a judgment of the jurisdictional high court, i.e., the punjab and haryana high court in cit v. jindal brothers rice mills . subsequent to that, the assessee filed an application under section 254(2) of the act for rectification of the order passed by the tribunal in the petition under section 256(1) of the act, which was dismissed vide order dated june 29, 1993.4. when the case was taken up for hearing on the previous date of hearing, the question arose whether in a reference application, the high court could condone the delay in filing the petition under section 256(1) of the act before the tribunal. counsel for the assessee sought an adjournment to file a writ petition to challenge the portion of the order of the tribunal declining to condone the delay in filing the petition under section 256(1) of the act the assessee has thereafter filed c. w. p. no. 6685 of 1997. instead of challenging the portion of the order of the tribunal declining to condone the delay in filing the petition under section 256(1) of the act, the assessee filed the writ petition challenging the order of the tribunal passed under section 254 of the act on the merits.5. today, during the course of arguments, counsel for the assessee made a prayer that the lapse on his part may be condoned and the writ petition be taken as challenging the order of the income-tax appellate tribunal passed in the petition under section 256(1) of the act, a copy of which has been attached as annexure p-4 in itc no. 40 of 1994.6. counsel for the parties have been heard.7. the income-tax appellate tribunal had refused to refer the questions of law as the same were covered by a judgment of this court in jindal brothers rice mills' case . the aforesaid judgment stands over ruled by their lordships of the supreme court in cit v. p. j. chemicals ltd. : [1994]210itr830(sc) .8. keeping in view the peculiar facts and circumstances of the case and particularly the fact that on the merits the assessee has a strong case, we accept the request of counsel for the assessee and permit him to challenge the portion of the order of the tribunal declining to condone the delay in filing the petition under section 256(1) of the act, the copy of which has been attached as annexure p4 with itc no. 40 of 1994. under the proviso to section 256(1), the income-tax appellate tribunal had the jurisdiction to condone the delay up to the period of 30 days. the application filed by the assessee was within the period of 30 days and there was sufficient cause shown by the assessee for condoning the delay. we accept the explanation of the assessee that there was sufficient cause for condoning the delay of 23 days in filing the petition under section 256(1) of the act and the tribunal erred in not accepting the explanation rendered by the assessee. in writ jurisdiction, we set aside the order of the tribunal to the extent it refused to extend limitation in filing the petition under section 256(1) of the act. the writ petition, accordingly, stands accepted.9. reverting back to itc no. 40 of 1994, we find that a question of law does arise from the order of the tribunal. the tribunal had refused to make a reference to this court in view of the judgment of this court in jindal brothers rice mills' case , which stands over ruled by a subsequent judgment rendered by their lordships of the supreme court in p. j. chemicals ltd.'s case : [1994]210itr830(sc) .10. accordingly, we direct the income-tax appellate tribunal, amritsar bench, amritsar, to refer the following question of law, arising from the order of the tribunal, along with the statement of the case to this court for its opinion :'whether, on the facts and circumstances of the case, the amount of subsidy is to be reduced from the cost of building and machinery for determining the depreciation allowable ?'