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TMI Blog1990 (1) TMI 113X X X X Extracts X X X X X X X X Extracts X X X X ..... which was contrary to assessee's case set up earlier ? (b) If answer to question No. (a) is in the affirmative, whether Tribunal was legally right in admitting fresh evidence at this stage ? (c) Whether, Income-tax Appellate Tribunal was justified in calling for the evidence not before lower authorities and for which there was no ground of appeal - by taking resort to Rule 29 of Income-tax Appellate Tribunal Rules ? " As in our opinion, no question of law can be said to arise out of a remand order passed by the Tribunal, which is interlocutory order, because the appeal was not finally disposed of and the Tribunal was still seized of the matter, we decline to refer these questions to the Hon'ble High Court for its opinion. 2. Though ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nditure of Rs. 21.53 lacs spent on free distribution of soft drinks by its sister concerns. The Income-tax Officer's view was that by this process the assessee had inflated its expenditure with a view to reduce its tax liability. On the other hand, the assessee's case was that the entire expenditure of Rs. 31.91 lacs was incurred by the bottlers and when the department allowed Rs. 10 lacs out of such expenditure, there was no justification to presume that it was only on the taking over of the balance of expenditure that the assessee company was attempting to inflate its expenditure and that the expenditure on sampling was not incurred by the assessee company on its own but to the bottlers. This controversy had come up for consideration befo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ose particulars partly in favour of the assessee and partly against it and eventually allowed a part of the claim namely Rs. 15 lacs. Against the order of the IAC., an appeal was filed before the CIT who by then had already disposed of the appeals arising out of the assessments made for subsequent years when a view was taken that none of the expenditure incurred by the bottlers should be allowed as a deduction in the hands of the assessee company. Following that view, the Commissioner not only disallowed the claim made by the assessee but withdrew even the allowance made by the IAC by enhancing the assessment. In other words, the findings imposed by the Commissioner of Appeals in respect of this assessment year were the findings reached in ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... anchise would not support the assessee's case. The learned counsel for the assessee, on the other hand, submitted a proforma agreement entered into at the relevant time between the assessee company and the bottlers. The authenticity of these agreements required to be verified. This agreement consisted of 14 pages containing the agreements and a letter written by the assessee company to the bottlers and the bottlers' acceptance to the proposed arrangement. The Departmental Standing Counsel objected to the admission of the fresh evidence, relying upon the Delhi High Court decision in the case of CIT v. Anand Prasad [1981] 128 ITR 388. The Tribunal, after going through the decision of the Delhi High Court found that there was nothing in that j ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rcumstances under which the Tribunal felt compelled in the interests of justice to remand the case to get at the truth of the matter. It is, therefore, incorrect to suggest as was done during the course of hearing and also in the statement of facts filed before the Tribunal that the Tribunal had permitted the assessee to set up a new case and that the case had proceeded in the earlier stages that the assessee company had unilaterally taken over the advertisement expenses of five bottling companies. When there was a resolution passed by the assessee company it could never be unilateral. No one had cared to enquire as to how the resolution was put into effect. This is the mistake committed earlier which the Tribunal wanted to rectify now by g ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ) of section 66 is conditional on an application under sub-section (1) being refused by the Appellate Tribunal. This clearly presupposes that the application under sub-section (1) was otherwise a valid application. If, therefore, an application under sub-section (1) was not well-founded in that there was no order which could properly be said to be an order under sub-section (4) of section 33 then the refusal of the Appellate Tribunal to state a case on such misconceived application on the ground that no question of law arise will not authorise the High Court, on an application under sub-section (2) of section 66, to direct the Tribunal to state a case. The jurisdiction of the Tribunal and of the High Court is conditional on there being an o ..... X X X X Extracts X X X X X X X X Extracts X X X X
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