TMI Blog1978 (6) TMI 165X X X X Extracts X X X X X X X X Extracts X X X X ..... aintainability of the petition. He has contended that the petitioner has an alternative remedy by filing a reference application and, as such, the petition is not maintainable. Before we enter into the question whether it was necessary that the revising authority should have given reasons for its order, it is necessary to dispose of this objection. In order to appreciate this contention, it is necessary to refer to section 10(3), as it stood before the amendment, as also at present: "(3)(i) The revising authority or any additional revising authority may, for the purposes of satisfying itself as to the legality or propriety of any order made by any appellate or assessing authority under this Act, in its discretion, call for and examine, either on its own motion or on the application of the Commissioner of Sales Tax or the person aggrieved, the record of such order and pass such order as it may think fit: Provided that no such application shall be entertained in any case where an appeal lay against the order but was not preferred: Provided further that an application for stay of realisation of any amount of tax, fee or penalty, shall not be entertained by the revising authority o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... passed under section 10(3). Now, a reference lies against an order passed under section 10. The learned standing counsel contended that the amendment to section 11, which provides for a reference against an order passed under section 10 is significant. It was urged that, in view of the amendment, a reference lies against every order passed under section 10, and an order passed under section 10(4), as is the case here, is covered by section 11(1). The change in the phraseology of section 11 is not of much significance, for earlier also the power of stay was contained in section 10(3), and a reference lay against an order passed under section 10(3). Thus, the amendment to section 11(1) does not support the contention of the respondents. It was vehemently urged that as the words "under section 10" have been used in section 11 of the Act, a reference lies at least in respect of such orders which are provided for specifically in section 10. Phraseology of section 11 is undoubtedly wide. It also cannot be denied that the revising authority passes orders regarding waiver and stay under section 10(4), for it is this subsection which specifically provides for orders being passed on appli ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the Income-tax Act, 1922, against appellate order of the Assistant Commissioner. While hearing the appeal, the Tribunal came to the conclusion that further material was required for disposing of the appeal and, as such, directed the Income-tax Officer to make further investigation and send a report. After the Incometax Officer's report was received, the Tribunal disposed of the appeal, and while so disposing of the appeal it considered only those matters in respect of which the remand report was called for from the Income-tax Officer, as the controversy in respect of other items of income had been disposed of earlier, while calling for a remand report. A reference application was made by the department against the final order passed by the Tribunal. An objection was taken that the reference was time-barred and it was contended that the limitation for making the reference started running from the date when the Tribunal passed the first order deciding the controversy between the parties in respect of some items of income and calling for a remand report from the Income-tax Officer in respect of others. This contention was rejected on the ground that section 33(4), which dealt with the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... w that the opinion of the High Court on an interlocutory matter, would not enable the Tribunal to dispose of the appeal before it, conformably to the judgment passed by the High Court. This view was sought to be supported by the legislative practice that appeals against interlocutory orders did not find favour with the legislature. In Balbhadar Mal Kuthiala v. Commissioner of Income-tax, Punjab[1957] 31 I.T.R. 930., it was held that a reference lies only against an order passed by the Tribunal under section 33(4) of the Act and it was not maintainable against orders passed by the Tribunal subsequent to the disposal of the appeal in exercise of its inherent jurisdiction. In Commissioner of Incometax, West Bengal v. Calcutta Discount Co.[1971] 82 I.T.R. 941., the appellant had wanted to raise additional grounds of appeal and that was rejected by the Tribunal. It was held that the order of the Tribunal rejecting the application for additional grounds was not an order under section 33(4), and no reference against such an order was permissible. In Commissioner of Income-tax, Madras v. MTT. AR.S. AR. Arunachalam Chettiar[1953] 23 I.T.R. 180 (S.C.)., the Tribunal had partly allowed the ap ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ble to hold that the word "case" means a part of the case. The rational interpretation to adopt is that the orders in respect of which a reference is permissible under section 11 are orders not in the nature of interlocutory orders, but orders which decide the substantive rights of the parties in the assessment proceedings. In view of these conclusions, the preliminary objection raised on behalf of the State must fail. Coming now to the merits of the controversy, viz., as to whether it was incumbent on the revising authority to give reasons for rejecting the applications: The revising authority discharges judicial functions while deciding the revision and the stay and waiver applications. The order under section 10(4) of the Act is subject to scrutiny under articles 136 and 226 of the Constitution. The order as such must be a speaking order and the decision given must be supported by reasons, so that the superior court is assured that it is in accordance with law and is not a result of caprice, whim, fancy, or reached on the basis of policy or expediency (see Mahabir Prasad Santosh Kumar v. State of U.P.A.I.R. 1970 S.C. 1302. and Travancore Rayons Ltd. v. Union of India A.I.R. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... . All that it provides for is that the waiver application should be allowed only for special and adequate reasons and not as a matter of course. If this contention of the standing counsel is to be accepted, the revisional authority would be absolved from giving reasons for its revisional order also, for section 10(2) does not contain any explicit provisions for the revisional authority giving any reasons for its ultimate order. Similar is the position under section 9. But as against an order passed under section 9, a revision lies and a reference lies against an order passed under section 10 to this Court, it is incumbent on those authorities to give reasons while disposing of the appeal and the revisions. The legislature need not provide for the obvious, and as the necessity for giving reasons is inherent in the nature of judicial function, the omission to provide by statute the necessity for giving reasons does not lead one to the result that the revisional and appellate authorities can pass orders with faces of sphinx. Such a course is an antithesis of the judicial process. This is, however, not to say that detailed reasons need be given for refusing stay or waiver applications. ..... X X X X Extracts X X X X X X X X Extracts X X X X
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