2018 (10) TMI 1604

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..... Mr. Mihir Naniwadekar would urge that what is not chargeable to tax is brought to tax by relying on this proviso. That is to nullify the effect of the judgment of this Court that these subsidies are in the nature of capital receipts. Now the language of the proviso is relied upon and to the detriment of the petitioner. 3. Ordinarily, we are reluctant to examine the constitutional validity of any provision unless it is really necessary and in the facts and circumstances to render any decision on that question or issue. Further, where interest of justice demands any adjudication to that issue. The third and more relevant aspect is, if justice can be rendered without examining any larger issue or wider question, essentially on facts, then, th .....

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..... is responsible for the Commissioner not examining the issue. Despite the pendency of this Petition, the petitioner was ready and willing to cooperate and render assistance to the First Appellate Authority. However, the First Appellate Authority decided to await the decision of this Court and that is how the matter remained pending. 6. In the light of the above submissions of Mr. Naniwadekar and the position in law emerging from the discussion in the foregoing paragraphs, we are of the view that interest of justice would be served by not examining presently the issue of constitutional validity and legality of the provisio to Rule 9A. In the event, the Commissioner passes an order which is adverse to the interest of the petitioner, then, wh .....

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..... , the Commissioner accepts the view point of the petitioner, then, nothing would survive for consideration. It is then for the Revenue to challenge the Commissioner's order, if it feels aggrieved, before the higher Court. Equally, if the order of the Commissioner is adverse to the petitioner, the petitioner can approach the Tribunal and impugn and challenge it also on the grounds set out in the Writ Petition. In the event, any necessity arises of examining the legality and validity of proviso to Rule 9A in future, we have no doubt in our mind that merely because this Writ Petition is disposed of by us does not prevent or preclude the petitioner from pressing this issue again. All contentions of the petitioner in relation thereto are kep .....

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