Respondent-Assessee v. Question

IN THE HIGH COURT OF GUJARAT AT AHMEDABAD INCOME TAX REFERENCE No 137 of 1991 For Approval and Signature: Hon'ble MR.JUSTICE A.R.DAVE and Hon'ble MR.JUSTICE A.M.KAPADIA ============================================================ 1. Whether Reporters of Local Papers may be allowed : NO to see the judgements? 2. To be referred to the Reporter or not? : NO 3. Whether Their Lordships wish to see the fair copy : NO of the judgement? 4. Whether this case involves a substantial question : NO of law as to the interpretation of the Constitution of India, 1950 of any Order made thereunder? 5. Whether it is to be circulated to the concerned : NO Magistrate/Magistrates,Judge/Judges,Tribunal/Tribunals? -------------------------------------------------------------- COMMISSIONER OF INCOME-TAXVersus VEPAR -------------------------------------------------------------- Appearance: 1. INCOME TAX REFERENCE No. 137 of 1991 MR MANISH R BHATT for Petitioner No. 1 MR RK PATEL for Respondent No. 1 -------------------------------------------------------------- CORAM : MR.JUSTICE A.R.DAVE and MR.JUSTICE A.M.KAPADIA (Per : MR.JUSTICE A.R.DAVE) 1.�At the instance of the revenue, the following two questions, arising out of the order passed by the Income-tax Appellate Tribunal, Ahmedabad Bench-A, have been referred to this Court under the provisions of Section 256(1) of the Income-tax Act, 1961 (hereinafter questions, arising out of the order passed by the Income-tax Appellate Tribunal, Ahmedabad Bench-A, have been referred to this Court under the provisions of Section 256(1) of the Income-tax Act, 1961 (hereinafter referred to as the "Act"). (1) "Whether, the Appellate Tribunal is right in law and on facts in allowing office expenses disallowed by the I.T.O. U/s.40-A(3)?" (2) "Whether, the Appellate Tribunal is right in law and on facts in allowing interest deficit disallowed by the ITO U/s. 40-A(3)?" 2.�Senior Standing Counsel Shri Manish Bhatt has appeared for the applicant-revenue whereas learned advocate Shri R.K. Patel has appeared for the respondent-assessee. 3.�So far as question no.1 is concerned, it has been submitted by the learned advocates that in I.T.R. No. 4/1992 similar legal issues had arisen for Assessment Year 1981-82 and the said legal issues have been decided by this Court by its order dated 1st July, 2003 in favour of the assessee and against the revenue. In the circumstances, we answer the first question in the affirmative i.e. in favour of the assessee and against the revenue. 4.�So far as the second question is concerned, upon perusal of the order passed by the Tribunal, we do not find any independent findings arrived at by the Tribunal on the said legal issue. However, it appears that the Tribunal has placed reliance on its earlier order passed in the case of C.I.T. Vs. Mrinalini V. Sarabhai, I.T.A. No. 1870/Ahd/1986 and by placing reliance upon the findings of the said order, the Tribunal has come to a particular conclusion. In our opinion, as the conclusion arrived at by the Tribunal is based on the facts of another case or on the basis of another assessment year of the same assessee, in absence of the discussion regarding the facts of the relevant assessment year, we would not be in a position to gather facts of the case and, therefore, we decline to answer the second question. to costs. ����(A.R. DAVE,J.) ����(A.M. KAPADIA,J.) siji