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TMI Blog2004 (6) TMI 14X X X X Extracts X X X X X X X X Extracts X X X X ..... f 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 no separate application shall be filed. This was not a judicial order but an order passed administratively in procedural matters. This was being followed so long before this court in respect of references preferred against a consolidated order. After section 260A was introduced, the same procedure continued to be followed in appeals under section 260A as well, both by the assessee and by the Department. Accordingly, in each of these two appeals, one appeal under section 260A has been filed by the Department against one consolidated order covering two or more appeals concerning two or more assessment years, as the case may be. Submission on behalf of the appellants: When this matter was brought to our notice, we found some difficulties in view of the ch ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... l 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. On the other hand, it is the duty of the court to ascertain the valuation and find out as to whether the suit has been correctly valued and sufficient court fees have been paid. If on valuation it appears that excess court fees have been paid, the court has the power under section 17 to pass an order of refund and if it appears that deficit court fees are paid that may be recovered by extending time. Whereas section 10 requires the court to give a certificate that the court fees paid are sufficient before signing the decree. Therefore, even if one appeal could be preferred there is no escape from payment of court fees in respect of each appeal. When a consolidated order is passed, it disposes of several appeals giving rise to an independent cause of action f ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... allacious. 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 of each assessment year gives rise to an independent, distinct and separate cause of action to each assessee. Such consolidation may be made in respect of several or different assessees. There seems to be no bar in joining several assessees in one appeal if the order is a consolidated one. But then each of the assessees would be vindicating his independent individual right or cause of action affecting him, which is subject to the practice and procedure. It would relate only to the appeal in respect of the assessment concerning him and not otherwise. If there are several causes of action, in that event, each one has a separate right to prefer an appeal. One of the assessees may not prefer an appeal against the consolidated order and the other may. Therefore, we are ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... comes 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 the Income-tax Act. But when it comes to the question under section 260A, then the appeal is preferred to this court against the order disposing of the appeal by the learned Tribunal. Even though it is one consolidated order it deals with several appeals in respect of each assessment year and each assessee involving one identical or same question. Before the learned Tribunal there were several appeals though one common judgment was given but it has to be taken to have been delivered in each of the different appeals pending before the learned Tribunal whether it relates to the same assessee or different assessees or for different assessment years of the same or different assessee or assessees. The Kerala High Court, however, took a dissenting view in the decision i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 prescribe any rules for reference under section 66 thereof. In 1935 rules under the Indian Income-tax Act were framed by the High Court in exercise of its inherent rule making power as then contained in Chapter XXX-A of the Original Side Rules following the judgment of Lord Willaims and Jack JJ. in CIT v. Hungerford Investment Trust Ltd. [1935] 3 ITR 188 (Cal) citing the decision in Smith v. Williams [1922] 1 KB 158 (Sankey J.) which had held that when "apt procedure is not provided by statute, the judge must himself mould a convenient form of procedure as did the English Common Pleas in Hemming v. Williams [1871] L.R. 6 C.P. 480." These rules have undergone several amendments and now stand as we find incorporated in Appendix No. 14 of Appendices (Part II) of the Origin ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... visions 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 will relate to each individual case though the order might dispose of more cases than one. There is no specific provision in the Civil Procedure Code for consolidation of suits. It is under the inherent powers, that suits are consolidated by the court. The whole object behind consolidation is to avoid multiplicity of proceedings, unnecessary delay and expenses. Where it appears that there is sufficient unity or similarity in the matter in issue in the suits or that the determination of the suits rests mainly on a common question, it is open to the court to try them as analogous cases. The question to be considered also is as to whether or not the non-consideration* of the two or more suits may lead, apart from multiplicity of suits, to leaving the door open to conflicting deci ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 fees have been paid, in that event, further proceeding is to be stayed until proper amount of court fee is paid. Section 14 empowers the court to enquire as to the valuation in order to ascertain that proper court fee has been paid. In case after an enquiry in the procedure laid down in the Act, it appears to the court that the valuation is insufficient, in that event, the deficit court fee is to be recovered within the time to be specified by the court or in other words the court can extend the time to make good the deficit court fees. In case the valuation is found to be less and the court fee is found to have been paid in excess, in that event, the court is empowered to pass an order for refund or recovery of the court fee, as the case may be. Thus, it appears that the court ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ut 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 several causes of action concerning one assessee covering more than one assessment year or one or more assessment years concerning different assessees. Therefore, the appeal being preferred in respect of each cause of action separately but in a consolidated form since there is no bar in joining several assessment years and several assessees in one appeal with the leave of the court or otherwise when the question is identical within the meaning of Order 1, rule 1, Code of Civil Procedure (CPC). But we feel that the court has no power to remit or reduce the court fees payable thereon. As rightly pointed out by Mr. Khaitan, several such appeals have been admitted and are pending, therefore, the court may protect the interest of the parties and provide for extending time. Section 149 of ..... X X X X Extracts X X X X X X X X Extracts X X X X
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