- (1.) This is an appeal filed under Section 260A of the Income-tax Act 1961, in short hereinafter referred as the Act, against the order passed by the Tribunal. For the assessment years under consideration, the appeal was filed raising three substantial questions of law by the appellant. After hearing the appellant the appeal was admitted on 20.4.2010, which is reproduced as under:- We admit the present appeal on the following substantial questions of law:- 1. Whether the purchase of catalyst by respondent is a part of capital expenditure incurred on plant and machinery of enduring nature and accordingly the finding recorded by the Tribunal is not sustainable ? 2. Whether the Tribunal has committed illegality while allowing the interest on refund computed under section 143(1) of the Act even though no such interest was due under section 244-A of the Act ? During the course of final hearing, on 15.9.2011, Shri D.D. Chopra, learned counsel for the appellant had invited attention towards substantial question of law framed by this court and submitted that one additional substantial of law should be framed and admitted keeping in view the pleading on record and after taking into account the substantial question of law at SI. No. 1 which was already proposed in the present appeal as under:- Whether under the facts and circumstances of the case, the learned Income Tax Appellate Tribunal is justified in holding the cost of machinery spares as revenue expenditure purchased admittedly in the period 1985-86 to 2000-01 and capitalized in a single assessment year. Being satisfied with the argument advanced by the appellant, when we proceeded to dictate the order to frame another substantial question of law, Shri J.D. Mistri learned Senior Counsel, representing the respondents assessee submitted that he wants to cite certain case laws in support of his argument to the effect that no additional substantial question of law can be framed at later stage. The order dated 15.9.2011 is reproduced as under:- 1. Heard Sri D.D. Chopra, learned counsel for the appellant and Sri J.D. Mistri, learned Senior Counsel assisted by Sri Akarsh Garg on behalf of the respondent. 2. To substitute in place of respondent Indo Gulf Fertilizer Limited, the appellant prays for time to move application for impleadment. However, learned Senior Counsel for the respondent Sri J.D. Mistri, assisted by Sri Akarsh Garg, submits that he has no objection in case appellant substitutes Aditya Birla Novo Limited in place of respondent. 3. Accordingly, the appellant is permitted to substitute Aditya Birla Novo Limited in place of respondent forthwith. During the course of hearing, Sri D.D. Chopra submits that keeping in view the facts and circumstances of the case, one more substantial question of law be framed broadly keeping in view the question of law framed by the appellant himself at serial No. 1. In response to submissions made by the appellant's counsel, learned Senior Counsel for respondents submits that keeping in view the order dated 20.4.2010, no further substantial question of law may be framed by this Court that too, on the basis of pleading of record. He further submits that once the Court applied its mind over the pleading of record and framed only two substantial question of law by order dated 20.4.2011, then it is not open to frame another substantial question of law based on same pleadings since it amounts to review of earlier order passed by this Court and only option for the appellant is to prefer appeal before the Hon'ble Supreme Court. 4. It has further been submitted that in any case, the same substantial question of law, contained in the memo of appeal, which was initially framed by the appellant in the memo of appeal, cannot be looked into and taken into account while framing another substantial question of law. 5. Section 260A of Income-tax Act, 1961 is reproduced as under: 260A. (1) An appeal shall lie to the High Court from every order passed in appeal by the Appellate Tribunal, if the High Court is satisfied that the case involves a substantial question of law. (2) The Chief Commissioner or the Commissioner or an assessee aggrieved by any order passed by the Appellate Tribunal may file an appeal to the High Court and such appeal under this sub-section shall be-- (a) filed within one hundred and twenty days from the date on which the order appealed against is received by the assessee or the Chief Commissioner or Commissioner. (b)*** (c) in the form of a memorandum of appeal precisely stating therein the substantial question of law involved. (2A) The High Court may admit an appeal after the expiry of the period of one hundred and twenty days referred to in clause (a) of sub-section (2), if it is satisfied that there was sufficient cause for not filing the same within that period. (3) Where the High Court is satisfied that a substantial question of law is involved in any case, it shall formulate that question. (4) The appeal shall be heard only on the question so formulated, and the respondents shall at the hearing of the appeal, be allowed to argue that the case does not involve such question: Provided that nothing in this sub-section shall be deemed to take away or abridge the power of the Court to hear, for reasons to be recorded, the appeal on any other substantial question of law not formulated by it, if it is satisfied that the case involves such question. (5) The High Court shall decide the question of law so formulated and deliver such judgment thereon containing the grounds on which such decision is founded and may award such cost as it deems fit. (6) The High Court may determine any issue which-- (a) Has not been determined by the Appellate Tribunal, or (b) Has been wrongly determined by the Appellate Tribunal, by reason of a decision on such question of law as is referred to in sub-section (1). (7) Save as otherwise provided in this Act, the provisions of the Code of Civil Procedure, 1908 (5 of 1908), relating to appeals to the High Court shall, as far as may be, apply in the case of appeals under this section. 6. A plain reading of sub-section (3) of Section 260A of the Income-tax Act. 1961 shows that at the time of hearing for admission of appeal in case High Court is satisfied that a substantial question of law is involved in any case, it shall formulate that question. Sub-section (4) further provides that appeal shall be heard only on the question so formulated and the respondent be allowed to argue the case, be permitted to argue the case that no such substantial question of law is involved. However, the proviso to sub-section (4) provides that nothing in this case shall be deemed to take away or abridge the power of Court to hear for reasons to be recorded the appeal on any other substantial question of law not formulated by it, if it is satisfied that the case involves such question. 7. Now, law is very well settled with regard to interpretation of statutes that every word, every line, para and section to be taken into account while interpreting the provisions. There cannot be any exclusion of any provision while interpreting the statutes. The reading should be combined one, section to section and word to word. 8. At this stage Sri J.D. Mistri, learned Senior Counsel submits that he wants to site certain case law to advance the argument. 9. List on 29.9.2011 for further hearing. Parties counsel may submit written arguments and compilation of case laws on the next date of listing.
(2.) At the face of record, on 15.9.2011, we were at the stage of final hearing of the matter and during the course of hearing learned counsel for the appellant had invited attention towards certain facts and circumstances and prayed for framing of one more substantial question of law. In view of request made by learned Senior counsel we have deferred the hearing and on 29.9.2012 again, we have heard learned counsel for the parties with regard to court's right to frame additional substantial question of law keeping in view the provisions contained in Section 260A of the Act.
(3.) Section 260A of the Income-tax Act requires interpretation with regard to framing of additional substantial question of law at later stage, particularly, during the course of hearing. For convenience Section 260A of the Income-tax Act is reproduced as under:-- Section 260A-- Appeal to High Court (1) An appeal shall lie to the High Court from every order passed in appeal by the Appellate Tribunal [before the date of establishment of the National Tax Tribunal], if the High Court is satisfied that the case involves a substantial question of law. (2) [The Chief Commissioner or the Commissioner or an assessee aggrieved by any order passed by the Appellate Tribunal may file an appeal to the High Court and such appeal under this sub-section shall be-- (a) filed within one hundred and twenty days from the date on which the order appealed against is [received by the assessee or the Chief Commissioner or Commissioner]; (b) *** (c) In the form of a memorandum of appeal precisely stating therein the substantial question of law involved. [(2A) The High Court may admit an appeal after the expiry of the period of one hundred and twenty days referred to in clause (a) of sub-section (2), if it is satisfied that there was sufficient cause for not filing the same within that period.] (3) Where the High Court is satisfied that a substantial question of law is involved in any case, it shall formulate that question. (4) The appeal shall be heard only on the question so formulated, and the respondents shall at the hearing of the appeal, be allowed to argue that the case does not involve such question: Provided that nothing in this sub-section shall be deemed to take away or abridge the power of the Court to hear, for reasons to be recorded, the appeal on any other substantial question of law not formulated by it, if it is satisfied that the case involves such question. (5) The High Court shall decide the question of law so formulated and deliver such judgment thereon containing the grounds on which such decision is founded and may award such cost as it deems fit. (6) The High Court may determine any issue which-- (a) has not been determined by the Appellate Tribunal; or (b) has been wrongly determined by the Appellate Tribunal, by reason of a decision on such question of law as is referred to in subsection (1) (7) Save as otherwise provided in this Act, the provisions of the Code of Civil Procedure, 1908 (5 of 1908), relating to appeals to the High Court shall, as far as may be, apply in the case of appeals under this section.];