The Commissioner Of Income Tax v. M/S. Thomas Cook (I) Ltd

IN THE HIGH COURT OF JUDICATURE AT BOMBAY ORDINARY ORIGINAL CIVIL JURISDICTION IN THE HIGH COURT OF JUDICATURE AT BOMBAY ORDINARY ORIGINAL CIVIL JURISDICTION INCOME TAX APPEAL NO. 611 OF 2008 INCOME TAX APPEAL NO. 611 OF The Commissioner of Income Tax ... Appellant The Commissioner of Income Tax ... Appellant The Commissioner of Income Tax ... Appellant Versus M/s. Thomas Cook (I) Ltd. ... Respondent Mr. Suresh Kumar for the Appellant. Mr.A.K. Jasani for Respondent. CORAM: F.I. REBELLO, &R.S. MOHITE, JJ. CORAM: F.I. REBELLO, & R.S. MOHITE, JJ. 9 DATED: JANUARY 09, 200 9 DATED: JANUARY 09, 200 9 DATED: JANUARY 09, 200 P.C. P.C. . The Revenue has preferred this appeal on the following two questions of law : "(a) Whether on the facts and circumstances of the case and law the Hon. ITAT was right in deleting the addition made on a/c of unclaimed balance account and cheques suspense account as trading receipts? (b) Whether on the facts and circumstances of the case and law the Hon. ITAT was right in deleting the addition made on a/c of stamp duty and registration fees paid on issue of bonus shares despite it results in acquiring benefit of enduring nature?" . In so far as question (b) is concerned, the learned counsel fairly concedes that considering the judgment of the Supreme Court in Commissioner of I.T. Vs. General Insurance Corporation (2006) 286 ITR 232, the question as framed would not arise as is covered by the said judgment. . In so far as question (a) is concerned, we find from the order of the tribunal that they have relied on the earlier order for the Assessment Year 1989-90. In the present case we are concerned with the Assessment Year 1996-97. The learned counsel was unable to inform us whether the Revenue has preferred any appeal for the Assessment Year 1989-90. For the assessment year 1989-90 the tribunal has relied on the judgment of the Supreme Court in Chief CIT Vs. Kesaria Tea Co. Ltd. 254 ITR 434 as also C.I.T. Vs. Sugauli Sugar Works (P) Ltd. 236 ITR 518 (SC). The submission of the learned counsel for the Revenue is that the judgment of the Supreme Court in CIT Vs. Sunderam (1996) 222 ITR 344 the judgment of the larger Bench was not considered in Sugauli Sugar Works (P) Ltd. . The ratio of the judgment has to be applied based on the facts of the case. In so far as same assessee is concerned, the tribunal has held in favour of the assessee on the same question. If revenue has not preferred the appeal in respect of the relevant year, in so far as this assessee is concerned, in our opinion, it will not be open for the Revenue now to contend that he judgment relied upon by the tribunal of the Supreme Court in arriving at this finding would be inapplicable. . Considering the above, in our opinion, question (a) also would not arise. . Consequently appeal dismissed.