The Commissioner Of Income-Tax, Haryana, Rohtak v. M/S Porrits & Spencer (Asia) Ltd., Faridabad

IN THE HIGH COURT OF PUNJAB AND HARYANA ATCHANDIGARH. I.T.R. No.51 of 1998Date of decision: 16.09.2008 The Commissioner of Income-tax, Haryana, Rohtak. Vs. M/s Porrits & Spencer (Asia) Ltd., Faridabad. -----Applicant -----Respondent CORAM:- HON'BLE MR JUSTICE ADARSH KUMAR GOELHON'BLE MR JUSTICE RAKESH KUMAR GARG Present:Mr. Yogesh Putney, Sr. Standing Counsel for the revenue. Mr. A.C. Jain, Advocate for assessee. ----- ORDER: Following question of law has been referred for opinion ofthis Court by the Income Tax Appellate Tribunal, Delhi Bench ‘C’, NewDelhi arising out of I.T.A. No.9226/Del/96 in respect of assessmentyear 1984-85:- “Whether, on the facts and in the circumstances of thecase, the Hon’ble ITAT was right in law in holding that thecomputing the disallowance u/s 40A(5) of the followingexpenses the provisions of rule 3(c) (ii) are applicable: Salary wages and bonus paid to personal servantsengaged by the employees of the assessee?” The Tribunal has recorded the following finding:- “11. The last ground in the appeal pertains to the valuationof the wages paid to servants provided to the employees ofthe assessee company for purposes of makingdisallowance under section 40-A(5). The CIT (Appeals)rejected the claim following his order for the assessmentyear 1983-84 which we have already adjudicated uponearlier in the revenue’s appeal. The assessee did not comeup on appeal against the decision in the earlier assessmentyear. Before us the learned counsel placed reliance on thedecision of the Tribunal dated 27[th] February, 1997 (supra)contending that an identical issue had been decided in theassessee’s favour vide para 5 of the said order. In the saidpara 5 we note that there is a reference to yet an earlierorder of the Tribunal for assessment year 1986-87 a copy ofwhich has not been filed before us. In order to be fair toboth the parties, we would restore the matter back to the fileof the assessing officer asking him to consider theassessee’s claim in the light of any judgements of theTribunal, which are in its favour, more so, those which havebeen passed after the date of the order of theCommissioner of Income-tax (Appeals) which is10.10.1990.” Learned counsel for the revenue has not been able to showthat the finding of the Tribunal on the said issue for the assessmentyear 1983-84 was challenged nor any reason has been shown to take adifferent view for the year in question. In these circumstances, the viewtaken by the Tribunal cannot be held to be erroneous. Accordingly, the question is answered against the revenue and in favour of theassessee. ( ADARSH KUMAR GOEL )JUDGE September 16, 2008 ashwani ( RAKESH KUMAR GARG )JUDGE