Reference to Special Bench cannot be withdrawn merely for the reason that HC has admitted identical question of law in another case

DCIT Vs Summit Securities Limited (ITAT Mumbai Special Bench)- Notwithstanding the fact that the substantial question of law raised in the order of the earlier Bench has been admitted by the Honourable High Court, there are no fetters on the Tribunal in hearing the case in Special Bench and rendering the decision which would prevail upon and become a binding precedent for the other Benches of the Tribunal. The learned Counsel for the assessee could not point out even a single judgement in which the Honourable High Court abstained the Tribunal from deciding the issue through Special bench during the pendency of appeal before it. With utmost humility there cannot be such a decision for the manifest reason that the justice delivery system has to take its own course and cannot wait in eternity for a higher judicial body to decide the issue first.

Here it is important to mention that we are dealing with a situation in which only a substantial question of law has been admitted by the Honourable High Court. It is not as if the said question of law has been finally decided. Situation may be different where the said substantial question of law receives consideration by the Hon’ble High Court and a final verdict is given. In such a case the parties before the Tribunal may apply for the withdrawal of the reference before the Special Bench provided the facts and circumstances of such case are similar to the one decided by the Honourable jurisdictional High Court. Such withdrawal may sound justified as proceeding with the matter would be an exercise in futility in the face of the judgement of the Honourable jurisdictional High Court. But where only a substantial question of law has been admitted by the Honourable High Court and the case is yet to come up for hearing, which may take several years, there is no reason whatsoever for any party to approach the Tribunal for the withdrawal of the reference to the Special Bench on the point. We, therefore, hold that the reference to the Special Bench cannot be withdrawn merely for the reason that the Honourable High Court has admitted the identical question of law in another case.

IN THE INCOME TAX APPELLATE TRIBUNAL

MUMBAI SPECIAL BENCH “I”, MUMBAI

Before Shri D Manmohan (V.P.), Shri R.S.Syal (A.M.),

and Shri N.V.Vasudevan (J.M.)

ITA No. 4977/Mum/2009

Asst. Year- 2006- 2007