TaxTMI 
TaxTMI 
2004 (7) TMI 82
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....cular assessment year and offered it to tax. In respect of the assessment years 1988-89 and 1989-90, the Commissioner of Income-tax (Appeals) had held that the amount would become taxable on the completion of the contract when the bank guarantee would be released and thus postponed the taxability till the completion of the contract. Against these two orders of the Commissioner of Income-tax (Appeals), the assessee preferred appeal before the learned Tribunal. The learned Tribunal by a consolidated order passed in these two appeals had laid down the principle of pro rata receipt of the mobilisation fees on the basis of the pro rata performance of the contract and did not agree with the postponement of the taxability till the completion of th....
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....arned Tribunal to dismiss the appeal without interfering with the order under appeal postponing taxability till completion of the contract contrary to the principle followed. The learned Tribunal did not grant relief to the assessee on the ground that the assessee did not prefer any appeal. Mr. Khaitan had relied on certain decisions in order to contend that it was open to the Tribunal to pass appropriate order in the appeal preferred by the Department even though no appeal was preferred by the assessee. In support of the appeal against the main order Mr. Khaitan relied on the decision in CED v. Estate of late Smt. K. Narasamma [1980] 125 ITR 196 (AP) wherein it was held that since the entire matter was under consideration by virtue of th....
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.... Respondents' submission: On the other hand, Mr. Mihirlal Bhattacharya, learned counsel for the Department had relied on the decision in CIT v. Cochin Refineries Ltd. [1988] 173 ITR 461 (Ker) that if no appeal is preferred against an order the same becomes conclusive and binding on the assessee and the Tribunal cannot pass any order in respect thereof. He has also relied on Orissa Weavers Co-operative Spinning Mills Ltd. v. CIT [1991] 187 ITR 646 (Orissa) to contend that the Tribunal is a creature of the statute, it has to exercise that much of the power which is provided under the statute and can exercise powers ancillary to the power vested. It has no wide power to grant relief where an appeal and a cross-objection is not preferred sinc....
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....s, it cannot shirk its responsibility after laying down the principle of law without applying the same to the facts and circumstances of the case at hand, even though it might go in favour of the assessee who had not preferred any appeal. When the appeal is before the learned Tribunal, it is the whole appeal that is before it and in such appeal the exercise of power flows from the appellate authority vested in the Tribunal. The Tribunal has to discharge its function as an appellate authority and passing of appropriate order is the sine qua non for the exercise of such function. It is the bounden duty of the Tribunal, particularly when it follows a particular principle of law or lays down a law. Inasmuch as when a law is laid down in connect....
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....cial function. It dispenses justice. The principle on which justice is dispensed is founded on fair play and doing justice in the case. Therefore, while the Tribunal lays down a particular proposition of law, it cannot close its eyes and withdraw its sleeves without applying the principle or the ratio laid down in the facts of the case. The Tribunal whenever sitting in appeal has to examine the case before it. In order to do justice, it has to apply the principle or the ratio laid down by it in the case on appeal before it. It cannot avoid its responsibility when deciding the appeal in a manner, which will render the entire order passed by the Tribunal contradictory. It cannot leave the matter in a fluid state deciding the principle in favo....
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....the earlier two years, in affirming the decision of the Commissioner of Income-tax (Appeals) for the assessment year 1990-91. This appears to be wholly anomalous and incongruous. Therefore, the order cannot be sustained. Conclusion: In any event, even if it is assumed that the Tribunal could not have passed any order since no appeal was preferred and no cross-objection was filed, even then in an appeal under section 260A in which the CPC is applicable as far as possible in view of sub-section (7) of section 260A and by reason of the provisions contained in section 260A(6), this court is empowered to pass appropriate order in an appeal. Under Order 41, rule 33 of the CPC, this court is empowered to pass any order in an appeal before it and....