TMI Blog2005 (1) TMI 14X X X X Extracts X X X X X X X X Extracts X X X X ..... JIT PASAYAT. and C. K. THAKKER. JUDGMENT The judgment of the court was delivered by Arijit Pasayat J. - Leave granted in S.L.P. (C) Nos. 13009-13012 of 2003, 13021-13022 of 2003, 2763-2766 of 2004 and 13015-13016 of 2003. These appeals have their matrix in a common judgment rendered by a Division Bench of the Karnataka High Court. By the impugned judgment several appeals filed by the assessees and the Revenue purported to be under section 260A of the Income-tax Act, 1961 (in short "the Act"), were disposed of. Detailed reference to the factual aspects would be unnecessary as we propose to dispose of the appeals taking note of submissions made by learned counsel for the appellants to the effect that the manner of disposal as ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... uded, along with share of income from capital gains. The basic dispute relates to the question whether the amount received had an element of capital gain. The assets of the firm were sold pursuant to an order passed by the High Court by invoking the provisions of section 583(4)(a) of the Companies Act, 1956 (in short "the Companies Act"). The Revenue authorities were of the view that the amount received by way of consideration after statutory adjustments amounted to receipt from a slump sale and was, therefore, taxable under the heading "Capital gain". The conclusions of the Revenue authorities were challenged by the assessees before the Income-tax Appellate Tribunal, Bangalore Bench (in short "the ITAT"). Aggrieved by various conclusions, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... passed by the Appellate Tribunal may file an appeal to the High Court and such appeal under this sub-section shall be,- (a) filed within one hundred and twenty days from the date on which the order appealed against is received by the assessee or the Chief Commissioner or Commissioner; (b) omitted ; (c) in the form of a memorandum of appeal precisely stating therein the substantial question of law involved. (3) Where the High Court is satisfied that a substantial question of law is involved in any case, it shall formulate that question. (4) The appeal shall be heard only on the question so formulated, and the respondents shall, at the hearing of the appeal, be allowed to argue that the case does not involve such question: Provide ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hall, as far as may be, apply in the case of appeals provided under the section, save as otherwise provided in the Act. Some of the provisions of section 260A are in pari materia with various sub-sections of section 100, CPC. The provisions are section 260A(1), 260A(2)(c), 260A(3), 260A(4) of the Act corresponding to section 100(1), 100(3), 100(4) and 100(5) of the CPC. Various essentials as culled out from the relevant provisions of the Act are as follows: Under section 260A(2)(c) the appeal under section 260A shall be (a) in the form of a memorandum of appeal and (b) precisely stating therein the substantial question of law involved. Under section 260A(3) when the High Court is satisfied that a substantial question of law is invol ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... me at the time of admission, the High Court is not empowered to generally decide the appeal under section 260A without adhering to the procedure prescribed under section 260A. Further, the High Court must make every effort to distinguish between a question of law and a substantial question of law. In exercise of powers under section 260A, the findings of fact of the Tribunal cannot be disturbed. It has to be kept in mind that the right of appeal is neither a natural nor an inherent right attached to the litigation. Being a substantive statutory right, it has to be regulated in accordance with law in force at the relevant time. The conditions mentioned in section 260A must be strictly fulfilled before an appeal can be maintained under sectio ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d have not been dealt with by the High Court appears to be correct. In the aforesaid background, the impugned judgment of the High Court is set aside. The matter is remitted to the High Court which shall deal with the matter afresh keeping in view the prescriptions of section 260A of the Act. We make it clear that we have not expressed any opinion on the merits of the case. For a period of three months the interim protection given by this court in the matter of recovery of tax shall be operative. It shall be open to the parties to move the High Court for such interim protection as the facts of the case warrant till disposal of the appeals. The appeals are disposed of accordingly with no order as to costs. - - TaxTMI - TMITax - Inc ..... X X X X Extracts X X X X X X X X Extracts X X X X
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