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TMI Blog2015 (4) TMI 1237X X X X Extracts X X X X X X X X Extracts X X X X ..... the case of Commissioner of Income Tax Vs. KRIBHCO 349 ITR Page 618 in this behalf. 3. That the order of the Assessing Officer as upheld by the Commissioner of Income Tax (Appeals) Chandigarh applying section 14A read with rule 8D to the deductions admissible under chapter VI-A more so when the SLP filed in the Supreme Court of India by the department has been dismissed meaning thereby that the Supreme Court has affirmed the order of the Delhi High Court referred to above. 4. That the order of the Assessing Officer as upheld by the Commissioner of Income Tax (Appeals) Chandigarh not allowing deduction u/s 80P(2)(c) amounting to Rs. 50,000/- is bad in law and needs to be allowed. 5. That the appellant craves leave to add, amend or delete any of the grounds of appeal before the same is finally heard. It is therefore humbly prayed that the order allocating expenses under section 14A read with rule 8D amounting to Rs. 4,53,11,101/- to the earning of interest income of Rs. 7,16,47,331/- may kindly be set-aside in view of the facts, circumstances and judicial decisions 3. Ground No.1 is of general nature and does not require separate adjudication. 4. Ground Nos. 2 & 3:- After hear ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... erwise of the order from which leave to appeal is sought. But what the court means is that it does not consider it to be a fit case for exercise of its jurisdiction under article 136 of the Constitution. That certainly could not be so when an appeal is dismissed though by a non-speaking order. Here the doctrine of merger applies. In that case, the Supreme Court upholds the decision of the High Court or the Tribunal from which the appeal is provided under clause (3) of article 133. This doctrine of merger does not apply in the case of dismissal of a special leave petition under article 136. When an appeal is dismissed the order of the High Court is merged with that of the Supreme Court. We quote the following paragraph from the judgment of this court in the case of Supreme Court Employees' Welfare Association v. Union of India, AIR 1990 Hon'ble Supreme Court 334; [1989] 4 SCC 187 (at page 344 of AIR 1990 S.C): "22. It has been already notice that the special leave petition filed on behalf of the Union of India against the said judgments of the Delhi High Court were summarily dismissed by this court. It is now a well settled principle of law that when a special leave petit ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... isen for decision in this appeal." 10. The Hon'ble Court discussed at page 368 to 370 the provisions of Article 132 to 136 of the constitution and noted the procedure of deciding Special Leave Petition. Thereafter at page 372 it was observed as under: " It is not the policy of this court to entertain special leave petition and grant leave under article 136 of the Constitution save in those cases where some substantial question of law of general or public importance is involved or there is manifest injustice resulting from the impugned order or judgment. The dismissal of a special leave petition in limine by a non speaking order does not, therefore, justify any inference that by necessary implication the contentions raised in the special leave petition on the merits of the case have been rejected by this court. It may also be observed that having regard to the very heavy backlog of work in this court and the necessity to restrict the intake of fresh cases by strictly following the criteria aforementioned, it has very often been the practice of this court not to grant special leave except in cases where the party cannot claim effective relief by approaching the concerned Hig ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... that of the Supreme Court. We find ourselves in entire agreement with the law so stated. We are clear in our mind that an order dismissing a special leave petition, more so when it is by a non-speaking order, does not result in merger of the order impugned into the order of the Supreme Court." The above very clearly shows that even in the decision quoted by Ld. Counsel for the assessee i.e; Kunhayammed And Others Vs. State of Kerala and Another(supra) also very clearly holds that if an SLP is dismissed in lemine then it would been that court has not commented on the merits of the case but it has merely found the same not to be a fit case for hearing. 12. The Ld. Counsel has specifically referred to the conclusion reached by the court which are as under: (i) "Where an appeal or revision is provided against an order passed by a court, Tribunal or any other authority before a superior forum and such superior forum modifies, reverses or affirms the decision put in issue before it, the decision by the subordinate forum merges in the decision by the superior forum and it is the latter which subsists, remains operative and is capable of enforcement in the eye of law. (ii) The ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... in subsequent proceedings between the parties. (vi) Once leave to appeal has been granted and the appellate jurisdiction of the Supreme Court has been invoked the order passed in appeal would attract the doctrine of merger; the order may be reversal, modification or merely affirmation. (vii) On an appeal having been preferred or a petition seeking leave to appeal having been converted into an appeal before the Supreme Court the jurisdiction of the High Court to entertain a review petition is lost thereafter as provided by sub-rule(1) of rule 1 of Order XLVII of the Code of Civil Procedure. In fact he has invited our attention to Clause (iii) of the above portion and clause were clearly shows that the Hon'ble Court can reverse, modify or affirm the judgment decree or order appealed, against while exercising its appellate jurisdiction in that case the doctrine of merger would apply while exercising the discretionary jurisdiction in disposing of a petition for special leave to appeal. When Supreme Court passed an non speaking order then that will not lead to merger. 13. From the above it become absolutely clear that if the Hon'ble Supreme Court while considering the ..... X X X X Extracts X X X X X X X X Extracts X X X X
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