K.J.SENGUPTA, J. - (1.) THE above appeal has been preferred against consolidated order dated 28th November, 2003 passed by the learned Tribunal for the assessment years 1986 -87 to 1988 -89 and 1993 to 1998 -99. The above appeal was admitted by this Court by order dated 11th December, 2008 on the following questions of law: "(i) Whether on a true and proper interpretation of the scheme of the Government of Gujarat the Tribunal was justified in law in holding that the incentive amount of Rs.14,71,545/ - for the assessment year 1988 -89 was liable to tax as a revenue receipt andwas not on capital account outside the purview of taxation? (ii) Whether on a true and proper interpretation of the scheme of Government of Gujarat, the Tribunal was justified in law in holding that the subsidy amounting to Rs.17,28,843/ - and Rs. 12,65,490/ -for the assessment years 1995 -96 and 1996 -97 respectively was liable to tax as a revenue receipt and was not on capital account outside the purview of taxation? (iii) Whether on a true and proper interpretation of the provisions of sub -sections (1) and (6) of Section 43, the Tribunal was justified in law in upholding the action of the Assessing Officer for the assessment years 1987 -88, 1988 -89 and 1993 - 94 to 1998 -99 in reducing the sum of Rs.34,19,226/ - no longer payable to M/s. Josef Meissner Gmbh and Co. from the actual cost/written down value of the assets for the purpose of grant of depreciation allowance? (iv) Whether the Tribunal was justified in law in upholding the disallowance of the payments made by the appellant during the previous years relevant to the assessment years 1987 -88 and 1988 -89 to Shriram Institute for Industrial Research and Tata Economic Consultancy Services for Research in connection with Acetal Resins and Hexamine, value added products which could be manufactured from the appellant's existing product formaldehyde, as unrelated to the appellant's existing business and its purported findings in that behalf are arbitrary, unreasonable and perverse? (v) Whether the Tribunal was justified in law in upholding the addition of Rs.2,82,573/ - made in the assessment year 1988 - 89 on account of notional interest on investment made with M/s. Kamarhatty Co. Ltd., rejecting the change in the method of accounting bona fide made by the appellant and followed regularly and consistently and its purported findings in that behalf are arbitrary, unreasonable and perverse? (vi) Whether the Tribunal was justified in law in upholding the disallowance of the appellant's claim under Sections 28 and/or 37(1) for deduction of the business advance of Rs.74,59,661/ - made to the joint venture company M/s. Polypropylene India Ltd. written off in the appellant's accounts for the assessment year 1995 -96 and its purported findings that the expenditure was capital in nature not incidental to the running of the appellant's business and disallowing the claim are arbitrary, unreasonable and perverse? (vii) Whether the Tribunal was justified in law in upholding the disallowance of a sum of Rs. 13,42,739/ - out of the interest expenditure incurred by the appellant for the purposes of its business during the previous year relevant to the assessment year 1995 -96 and its purported findings in that behalf and upholding taxation of the said amount as deemed interest on the advance made to M/s. Polypropylene India Ltd. in the earlier years out of the appellant's own funds are arbitrary, unreasonable and perverse?"
(2.) THEREAFTER following additional substantial questions of law for the assessment year 1988 -89 were formulated and were accepted by the Court for hearing which are as follows: - (a) Whether on a true and proper interpretation of the scheme of the Government of Gujarat the Tribunal was justified in law in holding that the incentive amount of Rs.14,71,545/ - for the assessment year 1988 -89 was liable to tax as a revenue receipt and was not on capital account outside the purview of taxation? (b) Whether the Tribunal was justified in law in upholding the addition of Rs.2,82,573/ - made in the assessment year 1988 - 89 on account of notional interest on investment made with M/s. Kamarhatty Co. Ltd., rejecting the change in the method of accounting bona fide made by the appellant and followed regularly and consistently and its purported findings in that behalf are arbitrary, unreasonable and perverse? It appears from the records that before this appeal was preferred to challenge the impugned judgment and order the assessee initiated proceeding before the Tribunal. It appears from the records that 13 miscellaneous applications were made in relation to all the assessment years with a prayer for rectification of errors that were crept in the orders and the same were apparent on the records. While entertaining the said applications the learned Tribunal by order dated 11th June, 2004 did not rectify rather recall all orders passed on 28th of November 2003 and thereafter the Registry was directed to fix the cases for fresh hearing in due course. Thereafter the said appeals came up for fresh hearing. The said appeals were restored and immediately thereafter the assessee/appellant again filed Miscellaneous Applications bearing No.362/Kol/04 to 374/Kol/04 against order dated 11th June, 2004. In subsequent Miscellaneous Applications it was the contention of the appellant that earlier Miscellaneous Applications were not intended to make for recalling of the entire order but for rectification and correction of mistakes which are crept in the order of the Tribunal passed in the above appeal referred to above. Accordingly, order dated 11th June, 2004 was sought to be modified and recalled and the order dated 28th November, 2003 of the learned Tribunal was asked to be recalled on the specific limited issues mentioned in the original Miscellaneous Applications being Nos.47 (Kol)/2004 to 59 (Kol)/2004. Learned Tribunal thereafter passed two separate orders dated 20th of December 2004 and order dated 11th June, 2004 and prayer for rectification and/or modification of the consolidated order dated 28th November, 2003 was allowed. On the background of the aforesaid fact Mr. Khaitan, learned Senior Counsel appearing for the appellant submits that by the subsequent order dated 20th of December, 2004 the learned Tribunal dealt with the three issues and also with certain other grounds which were not dealt with by it in the order dated 28th November, 2003. According to him order dated 28th November, 2003 did not deal with the various points and therefore his client is entitled to agitate the same. Thus he made submission on the merit of the appeal.
(3.) MR . Som, learned counsel appearing with Mr. Bhowmick for the Revenue has taken a preliminary point that the appeal is not maintainable at all with the passing of the order dated 20th December, 2004 order impugned herein has been merged. Admittedly, no appeal has been preferred against the judgment and order passed by the learned Tribunal on Miscellaneous Applications subsequently on 20th December, 2004. In view of the aforesaid situation the question of maintainability has to be decided first. This Court of course allowed both the learned counsels to advance argument on merit in anticipation if the same is required to be decided after deciding the question of maintainability.;