TMI Blog2004 (4) TMI 46X X X X Extracts X X X X X X X X Extracts X X X X ..... ord 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. - we have not examined the issue on the facts nor applied our mind to the facts and hence the Tribunal will decide the appeal strictly on its merits - - - - - Dated:- 26-4-2004 - 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 June 24, 2003, passed by the Income-tax Appellate Tribunal in I. T. A. No. 48/Ind of 1998. It is admitted on the following substantial question of law: "(1) Whether the Trib ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he Assessing Officer considered it to be a case of revenue receipt and made addition. This addition was deleted by the Commissioner of Income-tax (Appeals) placing reliance upon a decision of the Tribunal rendered in the case of Ajanta Talkies in I. T. A. No. 486/Ind of 1994. When the matter was carried in appeal by 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, decided the issue in favour of the Department. It is against this finding of the Tribunal, 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, l ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... urpose and characteristic of the scheme and the nature of amount received by the assessee in hand pursuant to such scheme, in the light of the law laid down in Sahney Steel's case [1997] 228 ITR 253 (SC), that a finding can be recorded one way or 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 a 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 5 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 procee ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... examine the issue in the manner suggested by their Lordships of the Supreme Court in Sahney Steel's case [1997] 228 ITR 253. This court thus, cannot subscribe to such casual finding so recorded. It is not for us to examine 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's case [1997] 228 ITR 253. We, therefore, allow the appeal and set aside the order passed by the Tribunal dated June 24, 2003, passed in I. ..... X X X X Extracts X X X X X X X X Extracts X X X X
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