| COURT: | Bombay High Court |
| CORAM: | A. K. Menon J., S. C. Dharmadhikari J |
| SECTION(S): | 253 |
| GENRE: | Domestic Tax |
| CATCH WORDS: | strictures |
| COUNSEL: | K. Gopal |
| DATE: | April 15, 2015 (Date of pronouncement) |
| DATE: | May 1, 2015 (Date of publication) |
| AY: | - |
| FILE: | Click here to download the file in pdf format |
| CITATION: | |
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ITAT’s practice of routinely consolidating appeals is “most unfortunate, disturbing and dangerous” and leads to “pile-up” of cases. Such “elementary mistakes” should not be committed in future. ITAT is expected not to sign judgments and decisions unless they are checked thoroughly after transcription. It may be a boring task but it has to be performed by none other than the decision makers |
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(i) As far as question No.5 is concerned, we find the factual situation the backdrop of which this question is raised to be most unfortunate, disturbing and dangerous to say the least. The Tribunal as a matter of routine goes on consolidating appeals. Possibly the parties before the Tribunal feel that until there is a pile-up of the cases they need not be decided. Meaning thereby, if the same assessee and year after year raises the same questions and issues because of the findings of the assessing officer then, so long as there is no substantial prejudice to the interest of the revenue, these appeals need not been taken up periodically but can wait final outcome till some 8 or 9 appeals and for successive assessment years are lodged and registered. The Tribunal then can decide them and possibly by a common order. It is on such understanding of parties, their agreement and consent that the Tribunal keeps these appeals pending and that is how we have unfortunately and with great pain and anguish used the word “pile-up”. When they are eventually taken up for decision, naturally by passage of time, it is not possible for the representatives of both sides to recite the factual background and matters by furnishing the precise details. Just as public memory is short, even in cases of this nature and when the representatives are flooded with matters and cases, they will not be in a position to remember the details. This results in either conflicting and confusing submissions and arguments. The result is utter chaos. For illustration, we would reproduce two paragraphs from a common order passed by the Tribunal and impugned in this appeal…..
(ii) We really fail to understand as to any finding and stated to be factual and rendered for which year has been applied and followed for the latter years. If by settled principles and sheer common sense latest must follow the former or earlier than which is latest or later and which is former and earlier is not clear from these two paragraphs. However, the revenue has clearly conceded the position before the Tribunal. It must, therefore, suffer for having consented to the state of affairs and brought about by the Tribunal’s orders and directions noted and reproduced above. We do not see the anxiety of the parties and the Tribunal in consolidating matters and appeals. The power to consolidate Appeals is a power implicit and inherent in a power to decide and adjudicate them. If you have to render a judgment repeatedly on similar issues and which must be clearly indicated in your decision, meaning thereby reasons and conclusions, then, to avoid conflicting directions and orders often cases and appeals are consolidated. If they involve common questions, common arguments, they can be conveniently disposed of by a common order. Then, we can understand a consolidation. If the matters are factual but similar or identical, then, as well we can understand the Court or Tribunal consolidating appeals. However, there is no justification for consolidating matters and by keeping the earlier case pending till further appeals accumulate for subsequent years raising the same issues and questions. In that event, it would be wiser to decide the earliest case and if the same applies on facts and there is nothing different or distinguishing brought on record in successive assessment years, then the earlier decision can be applied and followed. That is a better way of deciding cases rather than waiting for more appeals to be filed and after the assessing officer and the first appellate authority continue to either err or fail to correct themselves. Therefore, we have found that there is absolutely no reason given for consolidation of these appeals and for decision by a common order. When we invited the attention of particularly Mr.Gopal, appearing on behalf of the assessee to page 68 and the opening paragraph in the Tribunal’s order, he could not tell us as to how the batch of 9 appeals involving assessment years 1998-99 to 2003-04 could be said to be involving the same issues. If they are consolidated and if both the revenue and the assessee are raising the same questions, then, that is not clear nor can it be discerned by such a cryptic opening remark. In this regard, we cannot do anything better then invite the attention of all concerned to the judgment of the Hon’ble Supreme Court rendered in the case of M/s. Chitivalasa Jute Mills V/s. M/s. Jaypee Rewa Cement reported in A.I.R. 2004 Supreme Court, 1687. In the context of power of consolidation of suits, the Hon’ble Court held as under ….
(iii) Thus, what holds good for consolidation of Suits would equally apply to appeals. We are not persuaded by the sincere efforts of Mr. Tejveer Singh in this case and the request made by him to still entertain this appeal so that once and for all the Tribunal can be guided by this Court. We think that our observations made above are enough to guide the Tribunal and we hope that such mistakes and elementary in nature are not committed in future. We also expect the Tribunal not to sign judgments and decisions unless their checked thoroughly by them after their transcription. It may be a boring task but it has to be performed by none other than the decision makers.
Generally, Tribunals pass consolidated orders of several assessment years of a particular assessee or of several assessees for separate assessment years stating that the facts are same and that they are doing so for the sake of convenience. This causes lot of confusion and inconvenience. What would be appropriate is to pass a separate order for each assessment year discussing the facts of that particular assessment year only even where facts are common just as assessees are filing returns of income, assessing officers are passing separate orders for each assessment year, etc. When several assessment years are clubbed or several assessees are clubbed and orders are passed, more often than not, it is most likely that there is confusion on facts. Moreover, the order also runs into several pages. Since the assessees are filing appeals separately for each assessment year by paying fees separately for each assessment year, it would be only appropriate for Tribunals to pass separate orders. Alternatively, the assessees should also be allowed to file consolidated appeals for several assessees or several assessment years if the facts, in the opinion of assessees, are the same. If one were to cite the reason of “saving paper”, then the appellants should also be permitted to file consolidated appeals. Institutions delivering justice should ensure that the justifiable rights of appellants are given due respect.