9911796707
TMI Blog2006 (8) TMI 612X X X X Extracts X X X X X X X X Extracts X X X X ..... . This Order shall dispose of the aforesaid three appeals as the questions of law involved are the same. Revenue has filed the present appeals against the same assessee relating to different assessment years i.e. 1982-83 to 1985-86. 2. For the sake of brevity, the facts are taken from Civil Appeal No. 1535 of 2006. 3. At the instance of the revenue the following two questions were referred to the High Court for its opinion under Section 256(1) of the Income Tax Act, 1961 (for short, 'the Act'), said to be arising from the order of the Tribunal: "1. Whether on the facts and in the circumstances of the case, the Tribunal was right in law in holding that each portion of salary and perquisite as is allowable under the h ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... .07 lacs to the profit and loss account under Section 37(1) of the Act. 6. This position of the assessee was accepted by the Tribunal. Thereafter, on a petition filed by the department, the Tribunal referred the aforesaid two questions to the High Court for its opinion. 7. Learned counsel appearing for the assessee has contended that the department cannot be permitted to revise the questions of law other than what were referred to the High Court. We agree with this contention and proceed with the aforesaid two questions which were referred to the High Court. 8. Insofar as question No.1 is concerned, this question is concluded against the revenue and in favour of the assessee by our order dated 12th August, 2008 passed in Civil App ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... uded from filing an appeal merely because no appeal was filed by the revenue against the earlier similar orders for justifiable reasons which have been spelt out in the judgment in paras 11 to 13, which are reproduced below: "11. The order of reference would go to show that same was necessary because of certain observations in Berger Paints India Ltd. v. Commissioner of Income Tax, Calcutta (2004 (12) SCC 42). The decision in Union of India and Ors. v. Kaumudini Narayan Dalal & Anr. (2001 (10) SCC 231) was explained in Himalatha Gargya v. Commissioner of Income Tax, A.P. and Anr. (2003 (9) SCC 510) at para 14. It has been stated in the said case that the fact that different High Courts have taken different views and some of the High ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ginal file to show that the revenue has taken a conscious decision not to file the appeal as the revenue involved was meagre. In response to our query, Mr. Tripathi has placed a letter stating that the original file is not traceable for the reasons that case is quite old, pertaining to the years 1974-77. In the absence of the original file showing that the revenue did not file any appeal by taking a conscious decision against the decision of the Calcutta High Court in the case of Rupenjuli Tea Co. Ltd.(supra), we assume that the revenue had accepted the ratio of the aforesaid case in Rupenjuli Tea Co. Ltd.(supra) and accordingly answer the question regarding the applicability of Section 44C of the Act against the revenue and in favour of th ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
