TMI Blog2003 (8) TMI 25X X X X Extracts X X X X X X X X Extracts X X X X ..... red by V.K. BALI J.-In this petition which has been filed under section 256(2) of the Income-tax Act, 1961, by the Commissioner of Income-tax, Central-I, Calcutta, the prayer is to direct the Tribunal to refer the following question of law for adjudication: "Whether, on the facts and in the circumstances of the case, the Tribunal was justified in law in deleting the addition of Rs. 65 lakhs when the assessee had failed to discharge its onus under the provision of the Income-tax Act?" The facts, from which the question framed above emanates, need a necessary mention. The respondent-assessee filed its return of income on June 28, 1985, and a revised return on February 17, 1988, pertaining to the assessment year 1985-86. The income-tax a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... er alia, stated that it had already filed a suit before the hon'ble Delhi High Court and the show cause notice and an ex parte order issued by the Central Excise Department has been stayed by the hon'ble Delhi High Court. It was further stated that the Assessing Officer had observed that the Department was relying on the annexures itself and not on the show cause notice. Annexures to the show cause notice were only an information relied on in the show cause notice by the Central Excise Department. This information was available even before the show cause notice came into existence. The case of the Department was that the annexures served two purposes, namely, that the documents were in existence even before the show cause notice and that th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... lakhs. Being aggrieved, the petitioner herein sought reference from the Tribunal on the question reproduced above. When it failed in its endeavour to get the question referred, the present petition under section 256(2) of the Income-tax Act, 1961, was filed. Mr. R.P. Sawhney, learned senior advocate, who appears in support of this petition has, vehemently, raised two fold contentions. His first contention is that on the facts and circumstances of this case and in particular when the annexures with the show cause notice dated March 27, 1986, revealed that the company had charged extra money than the one mentioned in invoice, the Income-tax Department was well within its right to add to the income of the company and issue show cause notic ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... et aside, the annexures had lost all their validity. All the annexures tagged up with the notice would, at the most, support the contents of the notice only, and once the notice is quashed, in our view nothing remains before the Department on the basis of which show cause notice could be issued. The Delhi High Court judgment, may not be binding upon the Income-tax Department, as such, but once, the very notice on the basis of which it was a case of the Department, that it required to add to the income of the assessee, has been quashed, no meaningful purpose shall at all be served in still persisting and proceeding with the show cause notice. We may mention here at this stage, that while dealing with the core issue pertaining to extra charge ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ce upon a judgment of the hon'ble Delhi High Court, some parts whereof have been reproduced above, but, in so far as the judgment itself is concerned, the same is made available to us during the course of arguments. We have ordered that the same be placed on record. A categorical finding has been recorded by the Delhi High Court that Mr. Vyas had charged some extra money from some of the dealers but the said money was never counted as an income of the assessee. In our considered view, when the very basis on which notice was issued to the assessee has since already been quashed, nothing survives in the matter. In view of the discussion made above, no referable question of law arises. The petition is dismissed, leaving, however, the parti ..... X X X X Extracts X X X X X X X X Extracts X X X X
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