TMI Blog1994 (11) TMI 78X X X X Extracts X X X X X X X X Extracts X X X X ..... e accounts. The Income-tax Officer made an assessment estimating the profit at ten per cent, which was based on the estimate of profit made in the prior years when the assessee was not maintaining any accounts. The Commissioner of Income-tax adopted a via media. He observed that the books of account maintained by the assessee may not have been ideally written. But the fact remained that he was maintaining books of account. His case of loss cannot in the circumstances be totally brushed aside. The fact that the accounts were not ideally written may not mean that he has made profit when the accounts disclosed loss. The Commissioner, therefore, held that the business results for the two years under appeal will be taken as nil. Both the assessee and the Revenue felt aggrieved by this order and filed separate appeals before the Tribunal, the assessee pressing for acceptance of his accounts and the Revenue for restoration of the estimate made by the Income-tax Officer. There was an independent proceeding in the year 1980-81 to bring to tax the profits of another contract which had been omitted to be considered in the original assessment. That led to an appeal Income-tax Appeal No. 16 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... idated applications could or could not be filed for reference before the Tribunal or under section 256(2) in this court when the appeals are disposed of by a consolidated order by the Tribunal. The Tribunal has occasion very often to decide appeals or cross-objections arising out of the same order of assessment for a particular year or out of different orders of assessment made for different years in relation to the same assessee or for different assessees. The question arises as to what is the procedure to be followed in applying for reference in such cases, whether there should be multiple applications for reference or whether a consolidated application for reference is sufficient. We are of the opinion that when multiple appeals are disposed of by the Tribunal by a consolidated order arising out of an order of assessment made on the assessee for one year, a single reference application is sufficient, followed by a single application under section 256(2) covering the questions raised both in the assessee's and the Departmental appeals. We say so, relying on two decisions of the Supreme Court in Narhari v. Shanker, AIR 1953 SC 419 and K. G. Khosla and Co. (P.) Ltd. v. Dy. Comm ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hose numbers should no doubt be indicated therein). The law on the point has been very succinctly stated by Chaturvedi and Pithisaria in their Income-tax Law, Fourth edition, at page 5411, as follows: "Where there is only one assessment order out of which two appeals arose and as a result of the disposal of both the appeals one order was passed amending the assessment order or refusing to amend the order, there is only one order against which it is necessary to file only one reference application under section 256. Whether the order against which reference is sought is as a result of two cross-appeals or is as a result of only one appeal is immaterial. Singular always includes plural and if the order, with which the assessee is aggrieved has been passed upon hearing two appeals, he can certainly mention the numbers of both the appeals in his reference application in order to indicate that the order form which he is aggrieved is the combined order passed in the two appeals." This view of the learned authors is based on the decision of the Madhya Pradesh High Court in J. K. Agents Pvt. Ltd. v. CIT [1972] 86 ITR 793, where separate appeals had been filed before the Tribunal by the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s such. The application filed in time was also dismissed on the ground that five different applications were required, and that one consolidated reference application was not competent in respect of all the appeals. The Delhi High Court on a writ petition filed by the Commissioner held that since the five appeals pertained to the same case of assessment of the Hindu undivided family for the assessment year 1951-52 and they were consolidated and disposed of by a common judgment, a single application for reference was competent. We are in agreement with the view expressed in these decisions. We must, however, make it clear that this view of ours pertains to the case of one assessee and an assessment made on him for one year under one enactment. Appeals relating to the same assessee for different years of assessment, or even for the same year under different enactments, will require separate reference applications in relation to each assessment though the appeals might have been consolidated and disposed of together. On this point, we are in agreement with the view expressed by the Madhya Pradesh High Court in J. K. Agents Pvt. Ltd.'s case [1972] 86 ITR 793 (already referred to), th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r estimated was reduced by him. Both the assessee and the Department appealed to the Tribunal, which dismissed the Departmental appeal, but allowed the assessee's appeal in part by confirming the rejection of the accounts, but at the same time reducing the estimate of turnover. The assessee challenged the order in his appeal in revision in this court without specifically challenging the order in the Departmental appeal. This court observed that since the order in the Departmental appeal was not under challenge that became final and the assessee's revision had to fail in consequence. In Jacob Mathew's case [1994] 93 STC 90 (Ker), the position was similar, except that the Tribunal dismissed both the assessee's and the departmental appeals. The assessee challenged only the order in the departmental appeal, but not the order in his appeal. This court observed incidentally that technically there should have been two tax revision cases in this court, and at any rate, one against the dismissal of the assessee's appeal. In any event, the assessee should have rectified the mistake in the tax revision case filed by him by including the number of his appeal also in it. Since no such step was ..... X X X X Extracts X X X X X X X X Extracts X X X X
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