TMI Blog2004 (6) TMI 14X X X X Extracts X X X X X X X X Extracts X X X X ..... us years were challenged before the Tribunal. But in respect of both the years involved in each of the two appeals the question involved was identical. Therefore, in both these cases the two appeals filed before the Tribunal by the respective assessees for the relevant two years were disposed of by one consolidated order each. Against the respective consolidated order, one appeal each has since been preferred under section 260A of the Income-tax Act, 1961, before this High Court. Now the question arises whether against one consolidated order disposing of several appeals by the learned Tribunal one appeal under section 260A of the Income-tax Act, 1961, could be maintained? Prevailing practice followed in Calcutta High Court: Before introduction of section 260A reference used to be preferred before the High Court under section 256 of the Income-tax Act, 1961. The hon'ble Mr. Justice Ajit Kumar Sengupta and hon'ble Mr. Justice Shyamal Kumar Sen (as their Lordships then were) were pleased to issue 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 years involved and ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... me view in relation to reference. In his usual fairness, Mr. Chakraborty had also referred to the decision in Mani and Co. v. CIT [1995] 213 ITR 563 passed by a Division Bench of the Kerala High Court which had taken the opposite view in such a situation. Mr. Chakraborty has also referred to a decision in Chandra Bhan Gosain v. State of Orissa [1963] 50 ITR 195 by the Supreme Court and contended that even if the consolidated order disposes of assessments for several years by a consolidated order then only one appeal would lie. Submission by amicus curiae: In order to assist this court, we had requested Mr. J.P. Khaitan to appear as amicus curiae. Mr. Khaitan had pointed out that because of the direction given by the Division Bench of this court one appeal against a consolidated order was being filed even if it related to more than one assessment year. At the same time, he, however, pointed out that the direction did not specify anything about the payment of court fees. Our attention to section 47 of the Court Fees Act has been drawn by Mr. Khaitan. From a reading of that section, it appears that it is only the State Government, which can remit or reduce the court fees payable ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... (1) may appeal to the Appellate Tribunal. Similarly, under sub-section (2) the Commissioner may direct the Assessing Officer to appeal to the Appellate Tribunal against an order to which he has objection. Sub-section (3) provides that every appeal under sub-section (1) and sub-section (2) shall be filed within the stipulated time. Therefore, section 253 requires the 'filing of a separate appeal in respect of each order before the Appellate Tribunal, if comes within the purview of section 253. Whereas, according to Mr. Dutta section 260A provides for an appeal from every order passed in appeal. If only one consolidated order is passed, in that event, only one appeal would lie in view of the expression used in section 260A. The submission of Mr. Dutta seems to be fallacious. If several appeals are filed before the Appellate Tribunal and all the appeals are consolidated and one consolidated order is passed, even then that consolidated order would affect all the appeals and by fiction it shall be deemed to have been passed in each of the appeals. Therefore, the appeal would lie from every order that passed consolidatedly in each of the appeals. At the same time, each assessment order ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ar question of law that is sought for. It is the Tribunal, which would dispose of the appeal on the basis of such opinion. Therefore, the appeal is not before this court. As such one reference can be maintained. However the said direction did not specify anything with regard to the payment of court fees. Even if assessees are different assessment years can be consolidated in one reference; but whether one court fee would be required or more than one court fee would be required was not specified in the said direction. However, since this was an advisory jurisdiction, and only the opinion is sought for on a particular question of law and it does not deal with the appeal or appeals pending before the learned Tribunal, the question of payment of one or more court fees becomes irrelevant. Therefore, in our view, one court fee on one application for reference out of one consolidated order has developed into a system and the practice is followed over a period of time both by the assessee and the Department. We do not think that the same should be deviated from. The same practice and procedure may be followed as was and is being followed so long in respect of reference under section 256 of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... R 195 while allowing one appeal against the order passed by the High Court in a single writ petition covering several assessment years of one assessee. It had distinguished the decision in Lajwanti Sial's case (petition for S.L.P. No. 673 of 1959) and Kishinchand Chellaram's case [1962] 46 ITR 640 (SQ). In the said decision in Chellaram [1962] 46 ITR 640, the apex court had made a distinction that though several appeals or references are disposed of by a single order it disposes of different cases and therefore even if the order is a consolidated one it would be separate causes of action for each assessment year and each assessee. Therefore, a single appeal would not be allowed. This reasoning supports the view we have taken in respect of appeals under section 260A. The apex court had made a distinction between an appeal under the Income-tax Act and that from an order passed in a writ petition. It had approved one appeal from an order passed in one writ petition covering several assessment years on the ground that the writ petition was one. It was not a case of consolidation of several appeals. The ratio laid down in this case supports the view we are taking. The 1922 Act did not ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Tribunal. It acts purely in an advisory capacity on a reference. It gives the Tribunal advice, but ultimately it is for the Tribunal to give effect to that advice (CIT v. Scindia Steam Navigation Co. Ltd. [1961] 42 ITR 589 (SC). On a reference, the High Court does not exercise any jurisdiction conferred upon it by the Civil Procedure Code or by the charter or by the Acts establishing it. The High Court's jurisdiction on a reference is of separate, special and limited nature conferred by the Income-tax Act only for the purpose of obtaining the High Court's opinion on questions of law (CIT v. Bansi Dhar and Sons [1986] 157 ITR 665 (SC). Whereas the jurisdiction under section 260A is an appellate jurisdiction in respect of which, by reason of sub-section (7) thereof, the provisions of the Civil Procedure Code relating to appeals to the High Court, except otherwise provided in the Act, as far as may be, apply. In exercise of the appellate jurisdiction, the High Court decides the case involved in the appeal. Therefore, the practice and procedure for reference cannot be inducted in respect of appeals. As soon the Civil Procedure Code applies the appeal against a consolidated order wil ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of the assessments or appeals even if one memorandum of appeal is filed, the same represent or relate to the causes of action or assessments of different assessees and also allow such different assessees to espouse their respective causes in the respective appeal, though decided by a common judgment. The utility of consolidation is not disputed. Consolidated appeal: Court fees payable: It is rightly pointed out by Mr. Khaitan relying upon Order 33 of the 22 Civil Procedure Code that the court in certain exceptional circumstances may permit filing of suits without payment of court fee by indigent persons but even then if the suit fails or otherwise, the court fees are still collected. At the same time, he referred to section 149 of the Civil Procedure Code. True it is that, the court can extend time for payment of deficit court fees. Similar provisions are also provided for in the Court Fees Act where the court has been empowered to extend the time for putting in the deficit court fees. Section 10 requires that the court has to record a finding before proceeding to deliver judgment that sufficient court fee has been paid. If the court records the finding that insufficient court ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... re, it is only a question of matter of procedure and convenience of the court. But, however, when one appeal is preferred against one consolidated order, such appeal would be treated to represent the cause of action of each assessment year concerning one assessee or different assessees as the case may be. As soon as it comes to separate causes of action, the court fee would become payable in respect of each cause of action concerning same assessee or different assessees involving one or more assessment years as the case may be and such court fees are to be paid on the memorandum of appeal, so consolidated, against a consolidated order passed by the learned Tribunal. Conclusion: Since the direction has been given by this court in respect of dealing with one consolidated order put in one single application for the purpose of convenience, we may not deviate from the practice and procedure followed in reference; and we may permit filing of one consolidated appeal against one consolidated order involving several assessment years or different assessees as the case may be. Even though one consolidated appeal is permitted yet it would amount to consolidation of several appeals and se ..... X X X X Extracts X X X X X X X X Extracts X X X X
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