TMI Blog2004 (11) TMI 55X X X X Extracts X X X X X X X X Extracts X X X X ..... dy and the law on the subject, the Tribunal will record a finding on the merits, as to what is the true character of the subsidy-capital or revenue - and whether the assessee is entitled to claim deduction or not. - - - - - Dated:- 29-11-2004 - Judge(s) : A. M. SAPRE., ASHOK KUMAR TIWARI. JUDGMENT The judgment of the court was delivered by A.M. Sapre J.- This is an appeal filed by the assessee under section 260A of the Income-tax Act, 1961, against an order dated July 27, 2000, passed by the Income-tax Appellate Tribunal in I.T.A. Nos. 463 and 464/ Ind/1995. It is admitted on the following substantial question of law: "1. Whether the Tribunal was justified in holding that the subsidy received by the assessee under the M.P. Nay ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the Revenue to the Tribunal, the Tribunal by merely referring to the decision of the Supreme Court rendered in the case of Sahney Steel and Press Works Ltd. v. CIT [1997] 228 ITR 253 and the order of the Tribunal in Sundram's case referred to supra, decided the issue in favour of the Department. It is against this finding of the Tribunal that the assessee is in appeal under section 260A of the Income-tax Act, 1961. Heard Shri Nazir Singh, learned counsel for the appellant, and Shri R. L. Jain, learned senior advocate for the respondent. Having heard learned counsel for the parties and having perused the record of the case, we are not satisfied with the way the Tribunal has decided this issue. The question whether a particular subsidy i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the other as to whether it is in the nature of capital or revenue and whether the assessee is entitled to get the benefit of deduction from his total income or not. What we find by mere perusal of the impugned order of the Tribunal, which is contained in paragraph 3 is that the learned Members of the Tribunal only referred to the judgment of the Supreme Court in Sahney Steel's case [1997] 228 ITR 253 without even referring to the law laid down and taking note of the scheme in question and proceeding to decide the issue. As observed supra, the Tribunal did not even take care to read, much less examine, the scheme (exhibit B) pursuant to which the assessee claimed to have received the subsidy amount. In our opinion, in the absence of any ex ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e the facts of the case de novo and record our findings. It is essentially the job of the Tribunal to examine the issue and then record a finding one way or the other. We have, therefore, refrained from going into the factual aspect of the matter for want of any categorical finding recorded by the authorities at least in the light of the law laid down by the Supreme Court in Sahney Steel's case [1997] 228 ITR 253. We, therefore, allow the appeal and set aside the order passed by the Tribunal dated July 27, 2000, passed in I.T.A. Nos. 463 and 464/Ind/1995. As a necessary consequence, we remand the case to the Tribunal to decide the aforesaid appeal afresh, keeping in view the law laid down by the Supreme Court in Sahney Steel's case [1997] ..... X X X X Extracts X X X X X X X X Extracts X X X X
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