TMI Blog2008 (8) TMI 1008X X X X Extracts X X X X X X X X Extracts X X X X ..... by the petitioner-company in respect of the assessment year 2005-06 alongwith interest. 2. Learned Counsel appearing for the petitioner further submits that although the provisions of entry tax have been declared ultra-vires by a division bench of this Court, the respondents are issuing notices for assessment of entry tax. He further stated that having regard to the division bench judgment declaring the provisions of entry tax as ultra vires, the petitioner is entitled to refund the amount. 3. Learned Counsel appearing for the petitioner has drawn our attention to Annexure-9 to the writ petition and submitted that in similar circumstances, this division bench of this Court in the case of K.I.C. Metaliks Ltd. v. State of Jharkhand ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... is connection, we would like to refer the decision of the Supreme Court in Kunhayammed and Ors. v. State of Kerala and Anr. reported in [2000] 245 ITR 360 (SC) where Their Lordships discussed the effect of pendency of Special Leave Petitions. In para-14 of the judgment, Their Lordships observed as follows: The exercise of jurisdiction conferred on this Court by Article 136 of the Constitution consists of two steps: (i) granting special leave to appeal; and (ii) hearing the appeal. This distinction is clearly demonstrated by the provisions of Order 16 of the Supreme Court Rules framed in exercise of the power conferred by Article 145 of the Constitution. Under Rule 4, the petition seeking special leave to appeal filed before the Su ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... down for hearing in accordance with the procedure laid down thereafter. Thus, a petition seeking grant of special leave to appeal and the appeal itself, though both dealt with by Article 136 of the Constitution are two clearly distinct stages. In our opinion, the legal position which emerges is as under: (1) While hearing the petition for special leave to appeal, the Court is called upon to see whether the petitioner should be granted such leave or not. While hearing such petition, the Court is not exercising its appellate jurisdiction; it is merely exercising its discretionary jurisdiction to grant or not to grant leave to appeal. The petitioner is still outside the gate of entry though aspiring to enter the appellate arena of the Sup ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... . Krishnaji Dattatreya Bapat this Court vide para 7 has emphasized three preconditions attracting applicability of doctrine of merger. They are: (i) the jurisdiction exercised should be appellate or revisional jurisdiction; (ii) the jurisdiction should have been exercised after issue of notice; and (iii) after a full hearing in presence of both the parties. Then the appellate or revisional order would replace the judgment of the lower court and constitute the only final judgment. In Sushil Kumar Sen v. State of Bihar the doctrine of merger usually applicable to orders passed in exercise of appellate or revisional jurisdiction was held to be applicable also to orders passed in exercise of review jurisdiction. This Court held that the effect ..... X X X X Extracts X X X X X X X X Extracts X X X X
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