ORDER
A. R. TIWARI, J. :
The applicant (CIT, Bhopal) has filed these four Misc. Civil Cases, particularised as above in Set No. A, under s. 256(2) of the IT Act, 1961 (for short the Act) seeking direction to the Tribunal to state the cases and refer the common questions, as extracted below, for our consideration and opinion :
(1) Whether, on the facts and in the circumstances of the case, the Tribunal is justified in restoring the appeals for the asst. yrs. 1977-78, 1978-79 and 1979-80 to the file of Tribunal/AAC when the matter was finally concluded after examination at various stages regarding the genuineness of the firm ?
(2) Whether, on the facts and in the circumstances of the case, the grounds under which the Tribunal entertained the miscellaneous appeals of the assessee can be termed as mistakes apparent from record for rectification under s. 254(2) ?
(3) Whether, on the facts and in law, the Tribunal is correct in passing the orders allowing the miscellaneous application under s. 254(2) beyond the statutory time limit thereunder ?
(4) Whether, on the facts and circumstances of the case, the Tribunal is justified in law in reopening the matter for the asst. yr. 1976-77, when the matter was finally concluded under s. 254(2) before the High Court ?
2. Misc. Civil Case No. 139 of 1990 relates to the order passed on R. A. No. 17/Ind/89 arising out of the order passed on RA No. 17/Ind/1989 arising out of the order passed in MA No. 1/Ind/1987 connectible with ITA No. 66/Ind/1982 for asst. yr. 1976-77 decided on 10th Feb., 1989. Misc. Civil Cases Nos. 102, 103 and 104 of 1990 are filed after rejection of the applications registered as RA Nos. 18, 19 and 20/Ind/1989 arising out of the orders passed in MA Nos. 3, 2 and 2A/Ind/1987 connectible with ITA Nos. 923, 1561 and 1562/Ind/1982 for asst. yrs. 1977-78, 1978-79 and 1979-80 decided on 10th Feb., 1989.
3. Briefly stated, the facts of the cases are that the assessee is a firm brought into existence by a partnership deed dt. 31st March, 1975 effective from 14th Nov., 1974. The business was carried on by the HUF till 26th Oct., 1973. The ITO found that no partition was effected in the family before the constitution of the firm. The ITO felt dissatisfied that there was no genuine firm. The assessee filed the appeals before the AAC which were dismissed. The assessee then filed appeals before the Tribunal which were also dismissed. Against these orders, the assessee again filed applications under s. 254(2) of the Act before the Tribunal. The applications were allowed. Against the orders passed on these applications the applicant filed applications under s. 254(2) of the Act, which were rejected. The applicant has then filed these applications under s. 254(2) of the Act.
4. Likewise the applicant (CIT, Bhopal) has filed remaining four Misc. Civil Cases, particularised as above in Set No. B, under s. 254(2) of the Act proposing two common questions, as extracted below, for our consideration and opinion :
(1) Whether, on the facts and in the circumstances of the case, the Tribunal was justified in confirming the order of the Dy. CIT(A) when the said order was as a result of allowing of miscellaneous application under s. 254(2) by the Tribunal beyond the statutory time limit ?
(2) Whether, on the facts and in the circumstances of the case, the Tribunal was justified in holding that the Dy. CIT(A) carried out the orders of the Bench in its order dt. 10th Feb., 1989 when the said order was clearly out of time in terms of s. 254(2) ?
5. Facts in brief concerning these four cases under Set No. B are that Dy. CIT(A) following the order of the Tribunal passed in MA No. 1/Ind/1987 for asst. yr. 1976-77, MA No. 3/Ind/1987 for asst. yr. 1977-78; MA No. 2/Ind/1987 for asst. yr. 1978-79; and MA No. 2A/Ind/1987 for asst. yr. 1979-80 arising out of the orders passed in ITA Nos. 66/Ind/1981, 923/Ind/1982; 1561/Ind/1982 and 1562/Ind/1982 set aside the orders of the AO and restored the issue relating to the genuineness of the firm to the file of AO. Aggrieved, the Department filed appeals before the Tribunal contending that Dy. CIT(A) has committed error and that the orders passed under s. 254(2) of the Act were unsustainable as being barred by limitation. It was thus contended that consequential orders were erroneous in law. The Tribunal, however, dismissed the appeals registered as ITA Nos. 584 to 587/Ind/1989. The applicant then filed applications under s. 254(2) of the Act which were registered as RA Nos. 432 to 435/Ind/1991. These applications were rejected on 16th March, 1992. Thereafter the applicant has filed these four Misc. Civil Cases under s. 254(2) of the Act.
6. Misc. Civil Case Nos. 580, 581, 584 and 585 of 1992 are filed after rejection of the applications registered as RA Nos. 434, 435, 433 and 432/Ind/1991 arising out of the orders passed in MA Nos. 1, 3, 2 and 2A/Ind/1987 connectible with ITA Nos. 586, 587, 585 and 584/Ind/1989 for asst. yrs. 1978-79, 1979-80, 1977-78 and 1976-77 decided on 9th Sept., 1991.
7. We have heard Shri D. D. Vyas, learned counsel for the applicant/Department, and Shri P.M. Choudhary, learned counsel for the non-applicant/assessee, in all these Miscellaneous Civil Cases, as particularised under Set No.A and Set No. B.
8. Although four questions are presented and projected in cases marked as Set No. A, the counsel for the applicant restricted these four cases to only question No. 3 in its reshaped and reframed form as noted below :
“Whether, on the facts and circumstances of the case, the Tribunal was justified in holding the miscellaneous applications under s. 254(2) of the IT Act, 1961 within limitation and passing the order in favour of the assessee ?”
9. Similarly in cases marked by Set No. B, two questions, as noted above, have been projected but the counsel for the applicant restricted the same to Question No. 1 as reshaped and reformulated below :
“Whether, on the facts and in the circumstances of the case, the Tribunal was justified in upholding the order of the Dy. CIT(A) resting on the fulcrum of the order passed by the Tribunal under s. 254(2) of the IT Act, 1961 ?”
10. Shri Choudhary submitted that the questions do not arise out of the orders passed by the Tribunal.
11. We have considered the submissions. We find that the questions posed in the cases denoted by Set No. B depend on the validity of the orders of the Tribunal passed in regard to cases denoted by Set No. A. In cases marked by Set No. A, the question is whether the miscellaneous applications were filed by the assessee within the statutory period of limitation and whether the Tribunal was justified in passing the orders in favour of the assessee ? In cases marked by Set No. B, the question is whether the Tribunal was justified in upholding the order of Dy. CIT(A) on the ground that he only carried out the order of the Tribunal passed in miscellaneous applications on 10th Feb., 1989 with regard to the genuineness of the firm. In other words the cases shown in Set No. B are closely linked with cases in Set No. A.
12. As we are making direction to the Tribunal, we do not deem it proper to express definite opinion on the merits of the matter but do find that the question of invocation of s. 254(2) of the Act is a question which needs to be heard and answered one way or the other at proper stage.
13. In the circumstances, we allow these applications in part and direct the Tribunal to state the cases and refer the aforesaid reshaped and reframed questions of law with regard to four cases indicated under Set No. A and state and refer the reshaped another question, as noted above, with reference to remaining four cases indicated under Set No. B.
14. These applications are thus allowed in part in terms indicated above with no order as to costs.
15. The counsel fee for each side in each case is, however, fixed at Rs. 750, if certified.
16. Transmit a copy of this order to the Tribunal immediately for compliance, as noted above with regard to these eight Misc. Civil Cases bearing particulars as documented above.
17. We also find it fit to direct the Tribunal to make an endeavour to comply with this order within a period of nine months from the date of the receipt of the copy of this order.
18. Retain this order in the record of Misc. Civil Case No. 139 of 1990 and place its copy each in the record of connected Misc. Civil Cases, as particularised under Set No. A and Set No. B, for ready reference.