MRS. BANOO E. COWASJI VS COMMISSIONER OF INCOME-TAX, 1998 PTD-MADHYA-PRADESH-HIGH-COURT-INDIA 1353 (1996)

Income-tax---

----Reference---Appeal to Appellate Tribunal---Rectification of mistakes-- Order of rectification deleting particular income from assessment following decision of High Court--- Second order of rectification again including such income in assessment--- Second order whether valid was a question of law-- Indian Income Tax Act, 1961, Ss. 154, 254 & 256.

The assessee was assessed to income-tax in the status of an individual. Her husband, C, expired on December 23, 1967, leaving behind certain properties. The assessee was one of the heirs of the said C. In the assessment for the assessment years 1969-70, 1970-71, 1971-72 and 1974-75, the Income-tax Officer included 1/3rd of the income of the properties left behind by the late C in the income of the assessee on the ground that it represented her share in the said income. The addition was confirmed on appeal. A similar addition was made to the income of the assessee in respect of the assessment years 1968-69 and 1972-73. This addition was, however, deleted by the Tribunal on appeal. Thereupon the Commissioner of Income-tax referred the matter to the High Court. The High Court passed the order on January 13, 1984, holding that the share income of the assessee in the property of the late C could not be included in her individual assessment as the total income of C's property was being assessed in the hands of the accountable person. On the basis of the aforesaid order of this Court dated January 13, 1984, the Income-tax Officer in exercise of his powers of rectification under section 154 of the Income Tax Act, 1961, rectified the aforesaid orders of assessment and deleted the said share income from the income of the assessee and reduced the demand accordingly. The same Income-tax Officer again rectified the order under section 154 of the Act and included the said share in the income of the assessee and, thus, revised the assessments accordingly. The Commissioner of Income-tax (Appeals) set aside the second order of rectification but the Tribunal sustained it. On an application to direct reference:

Held, that the question whether the Tribunal was correct in law in reversing the order of the Commissioner 6f Income-tax (Appeals), dated August 12, 1985, and restoring the order of the Income-tax Officer, dated September 21, 1984, under section 154 had to be referred to the High Court.

CIT v. Mrs. Banno E. Cowasji (1984) 147 ITR 744 (MP) and Davis Contractors Ltd. v. Fareham Urban District Council (1956) AC 696 (HL) ref.

G.M. Chaphekar with S.S. Samvatsar for the Assessee.

D.D. Vyas for the Commissioner.

JUDGMENT

A.R. TIWARI, J.---The legal representative, Mrs. Ketayun Stedman, of the deceased/assessee. Mrs. Banco E. Cowasji, has filed these applications under section 256(2) of the Income Tax Act, 1961 (for short "the Act"), seeking direction to the Tribunal to state the cases and refer the common questions proposed in the applications and extracted below arising out of the orders passed by the Tribunal on July 27, 1990, in Income-tax Appeals Nos. 1077, 1078, 1079, and 1080/Ind/1985 for the assessment years 1969-70, 1970-71, 1971-72 and 1974-75, after rejection of the Applications Nos. 205 to 208/Ind/90 by the Tribunal on December 10, 1990, presented under section 256(1) of the Act, for our opinion:

"(i)Whether, on the facts and circumstances of the case, and the material on record, the learned Tribunal was correct in law in holding that the Commissioner of Income-tax (Appeals) order, dated August 12, 1985, nullifying the Income-tax Officer's rectification order under section 154, dated September 21, 1984, for inclusion of A's share of income in the estate of the late E.C. Cowasji in A's hands for assessment, was erroneous in law and cannot be sustained?

(ii)Whether, on the facts and circumstances of the case and the material on record, the said Tribunal was correct in law in reversing the order of the Commissioner of Income-tax (Appeals), dated August 12, 1985, and restoring the order of the Income-tax Officer, dated September 21, 1984 under section 154?

(iii)Whether, on the facts and circumstances of the case and the material on record, the said Tribunal was correct in law in holding the judgment of the Madhya Pradesh High Court dated January 13, 1984, in the case of assessments for the assessment years 1968-69 and 1972-73 could not be applied for assessments in appeals before the Tribunal for assessment years 1969-70, 1970-71, 1971-72 and 1974-75 on the points of law?

(iv)Whether, on the facts and circumstances of the case and the material on record, the said Tribunal was c6rrect in law in holding that the Madhya Pradesh High Court decision dated January 13, 1984 ' A' for the assessment years 1968-69 and 1972-73 cannot be applied to the Tribunal's orders for the assessment years 1969-70, 1970-71, 1971-72 and 1974-75 dated July 27, 1990, unless references were made to the High Court under section 256 there against?"

The facts lie in a narrow compass. The assessee was assessed to income-tax in the status of an individual. Her husband, E. Cowasji, expired on December 23, 1967, leaving behind certain properties. The assessee was one of the heirs of the said E. Cowasji. In the assessment for the assessment years 1969-70, 1970-71, 1971-72 and 1974-75, the Income-tax Officer included one-third of the income of the properties left behind by the late E. Cowasji in the income of the assessee on the ground that it represented her share in the said income. The said addition was confirmed on Appeals Nos. 1077, 1078, 1079 and 1080/Ind/85. A similar addition was made to the income of the assessee in respect of the assessment years 1968-69 and 1972-73: This addition was, however, deleted by the Tribunal on appeal. Thereupon the Commissioner of Income-tax referred the matter to this Courtthrough Miscellaneous Civil Case No. 25 of 1983. This Court passed the order on January 13, 1984 (CIT v. Mrs. Banno E. Cowasji (1984) 147 ITR 744), in the aforesaid miscellaneous civil case holding that the share income of the assessee in the property of the late E. Cowasji could not be included in her individual assessment as the total income of E. Cowasji's property was being assessed in the hands of the accountable person. On the basis of the aforesaid order of this Court, dated January 13, 1984, the Income-tax Officer in exercise of his powers of rectification under section 154 of the Act rectified the aforesaid orders of assessment and deleted the said share income from the income of the assessee and slashed the demand accordingly. The same Income-tax Officer again rectified the order under section 154 of the Act and incinerated the deletion and included the said share in the income of the assessee and thus revised the assessments accordingly. Aggrieved by the second rectification, the assessee filed appeals before the commissioner of Income-tax (Appeals) who by common order, laced August 12, 1985, allowed all the four appeals and set aside the order of the second rectification by which the share income was included (Annexure "D"). Aggrieved by this order, the Commissioner of Income-tax filed the aforesaid appeals before the Tribunal. By common order, dated July 27, 1990, the Tribunal allowed all the four appeals and sustained the second rectification made by the Income-tax Officer (Annexure "E"). The applicant then filed reference applications under section 256(1) of the Act. The applications were registered as Revision Applications Nos. 205 to 208/Ind/1990. The applications were rejected. The applicant for each assessment year, as noted above, then filed these separate reference applications.

We have heard Shri G.M. Chaphekar, learned senior counsel, with Shri S.S. Samvatsar, for the applicant/assessee, and Shri D.D. Vyas, learned counsel for the non-applicant/Department in all these cases.

Although four common questions are proposed in these applications, counsel for the applicant/assessee submitted that only one question, as noted below, out of these questions would cover the controversy and would be sufficient for reference:

"Whether, on the facts and circumstances of the case and the material on record, the said Tribunal was correct in law in reversing the order of the Commissioner of Income-tax (Appeals), dated a August, 12, 1985, and restoring the order of the Income-tax Officer, dated September 21, 1984, under section 154?"

These cases on hand present a queer position as is reflected by the under noted observations contained in para.3 of the impugned order passed by the Tribunal:

"No doubt, there is unhappy situation that there are different findings in the case of the same assessee based on the same facts in different years. But such situation cannot be avoided in the manner it has been done. The law is bound to take its own course. "

It is seen that the Income-tax Officer took recourse under section 154 of the Act to rectify the orders in the light of the order passed by this Court on January 13, 1984 (see (1984) 147 ITR 744), in Miscellaneous Civil Case No.25 of 1983. The eventual destination of each litigation is or should be justice. No one can be lugged into such a course and left in the lurch on pettifoggery. It appears from the order that the Tribunal was alive to the unhappy situation but felt helpless to permit the orders to prevail even in the face of the decision of this Court rendered on January 13, 1984 (see (1984) 147 ITR 744).

The Court is required to act fairly and reasonably. In Davis Constractors Ltd. v. Fareham Urban District Council (1956) AC 696, 728 (HL), Lord Radcliffe put it elegantly as under:

....their actual persons should be allowed to rest in peace. In their place there rises the figure of the fair and reasonable man. And the spokesman of the fair and reasonable man, who represents after all no more than the anthropomorphic conception of justice, is and must be the Court itself."

Paul A. Freund, writing on Social Justice and the Law, draws attention to an inscription on the wall of the Harvard Law School Library, taken from Justinian's Institutes:

"The precepts of the law are these: "To live honorably, not to injure another, to render each his due.' (Honest vivere, non alienum leaders, suum cunique tribute)."

In view of the aforesaid position, we do not deem it proper to deal with this matter in detail so as to avoid prejudice to the parties but find it fit to call upon the Tribunal to state the cases and refer the undemoted question of law connectible with I.T.As. Nos.1077, 1078, 1079 and 1080/Ind/1985 for the assessment years 1969-70, 1970-71, 1971-72 and 1974-75:

"Whether, on the facts and circumstances of the case and the material on record, the said Tribunal was correct in law in reversing the order of the Commissioner of Income-tax (Appeals), dated August 12, 1985, and restoring the order of the Income-tax Officer, dated September 21, 1984, under section 154?"

We are, therefore, satisfied that a good prima facie case has been made out for direction to refer the question so that after reference we can consider and decide the same in conformity with law.

These miscellaneous civil cases are thus allowed in terms noted above but without any order as to costs.

Counsel fee is, however, fixed at Rs.750 for each side in each case, if certified.

Transmit a copy of this order to the Tribunal for compliance with the direction. As the matter is old, we further direct the Tribunal to make an endeavour to do the needful within ten months from the date of the receipt of the copy of the order.

Place the order in Miscellaneous Civil Case No.206 of 1991, and retain its copy each in connected miscellaneous civil cases, as particularized above, for ready reference.

M.B.A./1472/FCOrder accordingly.