1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY ORDINARY ORIGINAL CIVIL JURISDICTION SALES TAX REFERENCE NO. 1 OF 2001 IN REFERENCE APPLICATION NO. 2 OF 1994 Commissioner of Sales Tax, Maharashtra State, Bombay. ... Applicant. V/s. M/s.National Radio and Electronic Co.Ltd. ... Respondent. S.K.Nair, `A Panel counsel for the applicant. H.N.Vakil with S.M.Vakil i/b. Mulla & Mulla & Craigie Blunt & Caroe for the respondent. CORAM : V.C.DAGA AND K.K.TATED, JJ. DATED : 9th April 2010. P.C. : Heard learned counsel for the rival parties. Perused the statement of case and the questions referred for the opinion of this Court by the Maharashtra Sales Tax Tribunal, Mumbai vide its order dated 7th June, 1999, which read as under: (1) Whether on the facts and in the circumstances of the case and on a true and correct interpretation of section 8(3)(b) of the Central Act and the Rules framed thereunder, was the Tribunal justified in law in holding that the respondent dealer had properly complied with the recitals of `C form declarations issued by him and 2 consequently setting aside the penalty imposed under section 10-A read with section 10(d) of the said Act? (2) Whether on the facts and in the circumstances of the case and on a true and correct interpretation of the provisions of the Central Act and the Rules framed thereunder, was the Tribunal justified in law in setting aside the penalty imposed under section 10-A read with section 10(d) of the Central Act on the ground that the respondent-dealer had not contravened the recitals of the `C form declaration issued by him, even though the purchased goods were used by him in the generation or distribution of electricity or any other form of power? (3) Whether on the facts and in the circumstances of the case, was the Tribunal justified in law in holding that the goods purchased by the respondent-dealer on `C forms were used by him in the generation or distribution of electricity and consequently setting aside the penalty imposed under section 10A read with section 10(d) of the Central Act? 2. Both parties agree that before this reference was made by order dated 7th June, 1999, identical questions had come up for consideration before the larger bench of the Tribunal in the case of respondent- assessee itself, which the Tribunal was pleased to decide vide its judgment dated 17th June, 1995, which is still holding the field. 3. In the aforesaid view of the matter, learned counsel appearing for both parties submit that instead of considering the aforesaid questions on merits, the questions referred be modified by adding one more question reading as under: 3 (4) Whether the questions referred by the Tribunal at serial Nos. 1 to 3 need consideration at this hands of the High Court so long as the judgment and order of the larger bench of the Tribunal dated 17th June, 1995 in the case of assessee itself is holding the field? Both parties submit that this Court has a power to amend or add questions of law to consider the real issue [see M/s.S.P.Gramophone Company v. Commissioner of Income- tax, Patiala, AIR 1986 SC 1152; Commissioner of Income- tax, Bombay v. Scindia Steam Navigation Co.Ltd., AIR 1961 SC 1633; Rekhchand Gopaldas Mohta Spinning and Weaving Mills Ltd. v. Commissioner of Income-tax, Bombay South, (1966) 60 ITR 699 (Bom.) Commissioner of Income tax v. Tata Iron and Steel Co.Ltd., (1994) 206 ITR 196 (Bom.)] 4. Accepting the submission made, we frame one more question referred to above and consider the same. 5. Having framed the aforesaid question, both parties agree that the questions referred by the Tribunal at serial Nos.1 to 3 be returned unanswered with direction to the Tribunal to decide the same in the light of the law laid down by the larger bench of the Tribunal in Second Appeal No.1607/1992 with Second Appeal No. 864/1993 decided on 17th June, 1994 in the case of assessee itself with further direction to rehear the appeal and decide the same in accordance with law. 6. In the result, by consent of parties, question Nos.1 to 3 are returned unanswered with direction to the 4 Tribunal to rehear and decide the appeal in the light of the aforesaid judgment of the larger bench of the Tribunal in the case of assessee itself. So far as reframed question No.4 is concerned, the same stands answered in terms of this order. (K.K.TATED, J.) (V.C.DAGA J.)