The Commissioner Of Income Tax, Pune v. M/S.maharashtra Scooters Ltd

ASN IN THE HIGH COURT OF JUDICATURE AT BOMBAYORDINARY ORIGINAL CIVIL JURISDICTION INCOME TAX REFERENCE NO. 194 OF 1993 The Commissioner of Income Tax, Pune.Vs. M/s.Maharashtra Scooters Ltd. ..Applicant. ..Respondent. Mr. Tejveer Singh for the Applicant. Mr. Percy Pardiwala, Sr.Counsel along with Mr. Nitesh Joshi, Mr. Mitesh Naik i/by M/s. Dhru & Co. for the Respondent. CORAM : S.J.VAZIFDAR & M.S. SANKLECHA, JJ. DATE : 20th July, 2012 PC: This is a reference under Section 256(1) of the Income Tax Act, 1961 (hereinafter referred to as the “said Act”) as applied to Sur-tax Act by Section 18 of the Companies (Profits) Sur Tax Act, 1964 by the Income Tax Appellate Tribunal (hereinafter referred to as the “Tribunal”) referring for the assessment year 1987-88 the following substantial question of law for the opinion of this Court. Whether on the facts and in circumstances of the case, the Tribunal was justified in holding that as per Rule 1(iii) of Schedule II of Companies (Profits) Sur tax Act, the amount deductable from capital employed was the difference in depreciation allowed and depreciation provided in the books of accounts relating to assessment year 1987-88 only and not the accumulative difference of all earlier years? 2)The present reference application arises from the order of the Tribunal dated 30[th] September, 1992. In its order dated 30[th ]September, 1992, the Tribunal while upholding the order of the Commissioner of Sur Tax (Appeals) held that for the purposes of Sur Tax Act,1964 the amount deductable from capital employed was the difference in the depreciation provided for in the books of accounts and the depreciation actually allowed for the previous year relating to the assessment year 1987-88. This was on the basis of its earlier order for assessment year 1982-83 dated 24[th] November, 1988. The present order of the Tribunal dated 30[th] September, 1992 does not incorporate the reasons for upholding the respondent's claims which are possibly set out in the order dated 24[th] November,1988 of the Tribunal relating to the assessment year 1982-83. 3)The Tribunal in its statement of the case to this court has specifically referred above substantial question of law for the opinion of this court for the assessment year 1987-88 only because the same question of law has been referred to this court in assessee's own case for earlier years. It therefore, appears that in view of the reference being made to this court for the assessment years 1982-83, similar references were made for subsequent years. 4)When the present matter was on board on 29[th] June, 2012, the present application was adjourned to 13[th] July, 2012 to enable the applicant's Advocate to ascertain the fate of the reference application made for the assessment year 1982-83 and the subsequent years. On 13[th] July,2012, as the applicants were unable to inform the court about the reference application made for the assessment year 1982-83 and the subsequent years the matter was adjourned to 20[th] July,2012. On 20[th] July,2012 the Advocate for the applicant submitted that inspite of the best efforts on his part, the applicants are not able to ascertain the fate of the earlier reference application made for the assessment year 1982-83 to this Court. The Advocate for the respondent-assessee pointed out that for the years subsequent to assessment year 1982-83, the reference applications have been dismissed for default. the reference application made for the assessment year 1982-83 and the subsequent years the matter was adjourned to 20[th] July,2012. On 20[th] July,2012 the Advocate for the applicant submitted that inspite of the best efforts on his part, the applicants are not able to ascertain the fate of the earlier reference application made for the assessment year 1982-83 to this Court. The Advocate for the respondent-assessee pointed out that for the years subsequent to assessment year 1982-83, the reference applications have been dismissed for default. 5)In view of not having before us the reasons which resulted in the Tribunal allowing the appeal of the respondent, it would be impossible for us to answer the questions referred to us by the Tribunal for our opinion. This is is so, as the order of the Tribunal dated 30[th ]September, 1992 merely follows its own order made in the assessee's case for assessment year 1982-83 without incorporating its reasons in the present order or the parties making available to this court the order dated 24[th] November 1988 passed by the Tribunal for the assessment year 1982-83. 6) Therefore, in view of the above, we are left with no option but to return the above question unanswered to the Tribunal. 7)The reference is, accordingly, returned unanswered. ( M.S. SANKLECHA, J. ) ( S. J. VAZIFDAR, J.)