TaxTMI 
TaxTMI 
TaxTMI 
2020 (10) TMI 1027
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.... Court judgment on an identical issue. 3. Now the question before us is this: can we-a Bench of different composition but of the same strength, though-reconsider the issue, disregarding its earlier refusal, and frame a substantial question of law, afresh? Facts: 4. The disputed tax is less than Rs. one crore. Suppose we confine ourselves to the two substantial questions of law already framed. In that case, we need not adjudicate them on the merits because of the Circular the Revenue has issued earlier, setting out the Revenue's policy not to contest the matters with less than one crore disputed tax. So, unless we are persuaded to frame the third substantial question of law, there is no scope for adjudication. 5. In these circumstances, we set out the facts, first, to decide whether we should reconsider framing the third substantial question of law. If the Revenue has the third substantial question of law framed, then we will get into other aspects of the matter. 6. The respondent-assessee deals in mining, processing, and exporting of iron ore. For the assessment year 2008-09, it filed the returns. The Revenue processed the return and selected it for scrutiny. In August 2009, a....
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....1987 SC 1073 and subsequent judgments, including Nature Lovers Movement v. State of Kerala (2009) 5 SCC 373. 12. Ms Razaq has also drawn our attention to Section 260A of the Act. Then, she has submitted that this Court may, nay ought to, frame a substantial question of law "even at the stage of final hearing if this Hon'ble Court is satisfied that such a question arises in the matter". She has eventually argued that in Dr Prafulla Hede, "there was no appreciation of the decisions rendered by the Apex Court regarding grant of renewals of mining leases in forest lands after the enforcement of the Forest Conservation Act, 1980". To support her contentions, Ms Razaq has, among others, relied on Sir Chunilal Mehta & Sons v. Century Spinning and Mfg Ltd AIR 1962 SC 1314. Respondent: 13. Shri Pardiwala, the learned counsel for the respondent-assessee has submitted that this Court has already refused to frame a substantial question of law on the issue now the Revenue is trying to resurrect. According to him, the Revenue ought to have challenged this Court's order of the first refusal. Discussion: 14. This Court admitted the Revenue's appeal through an order, dated 7 January 2016. ....
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....he additional questions of law now the Revenue presented are the same as or similar to question (b) this Court refused to take as a substantial question of law. If it is similar, is there any bar against this Court's reframing a substantial question of law despite its earlier refusal? Before we determine this issue, let us examine a few precedents cited at the Bar. A New, Additional Question of Law: 18. In Commissioner of Income-tax-I, Lucknow, v. Indo-Gulf Fertilizers Ltd. [2012] 26 taxmann.com 66 (Allahabad), the High Court of Allahabad has framed two substantial questions of law and admitted the Revenue's appeal. During the final hearing, the Revenue's counsel wanted the Court to frame "one additional substantial of law" keeping in view the pleadings on record and the substantial question of law already framed. The Court was prepared to do so, but the assessee's counsel objected. 19. Repelling the assessee's counter assertions, Indo-Gulf Fertilizer has held that "formulation of a new question keeping in view the letter and spirit of sub-section (4) of Section 260 A shall not amount to review of earlier order". The mandate of proviso of sub-section (4) of Section 260 A is, acc....
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.... Messenger v. Anderson 225 U.S. 436, 444 (1912) Justice Holmes observes that in the absence of statute, the phrase, "law of the case," as applied to "the effect of previous orders on the later action of the court rendering them in the 69th Edn. same case," merely expresses the practice of courts generally refusing to reopen what has been decided. It is not a limit to their power, though. 25. The law-of-the-case doctrine is said to come in at least two forms. One form, also called the mandate rule, forestalls "relitigation in the trial court of matters that were explicitly or implicitly decided by an early appellate decision in the same case. Once an appellate court decides an issue, then it stands settled in further proceedings in the trial court and controls the case. The other form generally binds a court to its own earlier ruling in the same case-in the absence of an intervening ruling by a higher court on the same issue. This doctrine wants the courts to "display disciplined self-consistency" throughout the case The Law of Judicial Precedent, Bryan A. Garner et al., Thomson Reuters (2016), p.442. It distinguishes itself from res judicata (for instance, Section 11 of CPC)....
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....in Debi AIR 1960 SC 941. It is for the proposition that the principle of res judicata also applies between two stages in the same proceedings if a party to the proceedings wants to reagitate the matter at a later stage, despite a court deciding the matter at an earlier stage. 31. Let us examine Commissioner of Income-tax v. Biju Patnaik [1978] 112 ITR 555 (ORI.). There, the Orissa High Court has considered the relative scope of subsections (1) and (2) of Section 256, a provision deleted in 2005. Under sub-section (1), either an assessee or the Commissioner may require the Appellate Tribunal to refer to the High Court any question of law. Then, the Tribunal, in its discretion, draws up a statement of the case and refers it to the High Court. On the other hand, if Tribunal refuses to state the case on the ground that no question of law arises, the assessee or the Commissioner may apply under sub-section (2) of Section 256 to the High Court. In such an event, the High Court may require the Tribunal to state the case and to refer the questions to it. 32. On facts, we may notice that the Revenue applied to the Tribunal under section 256(1) of the Act. But it rejected that application.....
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....now before us. In a second appeal arising out of eviction proceedings, Madhya Pradesh High Court chose a few questions from the memorandum of appeal and framed them into substantial questions of law. But it has rejected a few others from the appeal memorandum. During the final hearing, the appellant wanted the Court to reframe those questions of law the Court had omitted earlier. 36. In that context, Kishanchand has noted that the appellant may state the questions of law and press the High Court to formulate those questions as the substantial questions of law. It must be at the stage of the motion hearing. Then, the High Court may either agree or disagree with the appellant's prayer. The Proviso protects, Kishanchand notes, the High Court's powers "to hear such other question of law which might not have been formulated by it, if it is satisfied that such a question, the case involves". But the "proviso contemplates hearing being permitted on such question not formulated by [the High Court], but not on question refused to be formulated earlier by it". 37. In other words, if the High Court felt that a particular question did not arise for hearing or was not a substantial....
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....ion (4) of Section 260A, especially the proviso appended to it, liberates the High Court to formulate and hear, for reasons to be recorded, the appeal on any other substantial question of law not formulated by it. But it does not, despite the Revenue's insistence, empower the High Court to reconsider its earlier view in the same proceedings and reformulate a question of law which it had refused to formulate. In other words, (1) a question that escaped the Court's earlier attention, or (2) a question the appellant not presented to the Court, or even (3) a question that cropped up because of subsequent developments stands on a different footing. But a question the High Court consciously refused to treat as a substantial question of law fails to qualify under none of the above three categories. 40. The Revenue ought to have challenged this Court's order, dated 7 January 2016, which refused to frame a particular question as a substantial question of law. That said, the Revenue is not remediless. If it chooses to question the High Court's judgment under Section 260A of the Act before the Apex Court, it may have its options open. It may comprehensively contend even on the grounds th....