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TMI Blog1982 (4) TMI 138X X X X Extracts X X X X X X X X Extracts X X X X ..... in the negative, in favour of the department and against the assessee. Now the matter comes up for passing an order under section 260(1) of the Income-tax Act, 1961 ('the Act'), conformably to the judgment of their Lordships referred to above. 2. When the matter came up for hearing, Shri G.C. Sharma, the learned counsel for the assessee, submitted that though the decision of the High Court on the question referred to them, has gone against the assessee, still the alternative submission made by the assessee to the Tribunal at the time of original hearing of the appeals, remains to be considered and disposed of. In this connection, he invited our attention to paragraph 20 of the order of the Tribunal dated 24-8-1974, where the Tribunal held ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... be decided now as this has not been withdrawn by the appellant specifically. 4. Shri Sharma then argued that the AAC erred in sustaining the following additions which were made by the ITO to the income of the assessee : ------------------------------------------------------------------------------------------------------------------------------------------------ Assessment yearSaleof wild grass Net profit from sales of books and photos ------------------------------------------------------------------------------------------------------------------------------------------------ 1967-68 Rs. 1,000 Rs. 1,020 1968-69 Rs. 1,500 Rs. 1,207 1969-70 Rs. 2,000 Rs. 1,297 ---------------------------------------------------------------- ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... have been argued at the time of bearing of the appeals. Shri Prasad also submitted that the additions made by the departmental authorities were fully justified and that the same should be upheld. 6. We have carefully considered the submissions urged on both sides in the light of the authorities cited and relied on by the learned counsel. In para 20 of the appellate order dated24-8-1974, the Tribunal disposed of the alternative contention based on the ground of estoppel in the following words : "20. In the view we have taken that even on an independent and a fresh examination of the whole issue for the assessment years under consideration the assessee is entitled to exemption, it is unnecessary to consider how far the assessee is justif ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... o resolve this conflict in the present case." It is in the light of the above observations that the learned counsel for the assessee contends that we should decide this ground which was left open by the Tribunal. In our view, such an exercise will be a futile exercise in view of the fact that there has been an independent and fresh examination of the whole issue for the three assessment years under consideration of the assessee's claim for exemption not only by the Tribunal but also by the High Court. In fact, it is not open to the Tribunal to traverse beyond its jurisdiction while giving effect to the judgment of the High Court on the question referred by the Tribunal to the High Court. As rightly contended by the revenue, the assessee c ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... CIT [1966] 60 ITR 793 (All.), their Lordships of the Allahabad High Court reviewed English and Indian case law on the question of res judicata in tax litigation and held that the decision of the same High Court in the earlier reference in the case of the same assessee which was reported in British India Corporation Ltd. v. CEPT/CIT [1958] 33 ITR 826 did not operate as res judicata as a matter of pure law. Their Lordships further held that in the said case there was no identity between the question of the earlier reference and the present question because the chargeable accounting periods and the sums were different, and that the earlier decision did not also have effect as stare decisis as it was overruled by the decision in Ahmedabad Manuf ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... l be enforceable if the promisee has altered his position to his detriment in reliance on the promise.' The soul of estoppel is equity, not facility for inequity. Nor is estoppel against statute permissible because public policy animating a statutory provision may then become the casualty. Halsbury has noted this sensible nicety (Halsbury's Laws of England, para 1515) : 'Where a statute, enacted for the benefit of a section of the public imposes a duty of a positive kind, the person charged with the performance of the duty cannot by estoppel be prevented from exercising his statutory powers.' [Maritime Electric Co. Ltd. v. General Dairies Ltd. [1937] AC 610 ; [1937] 1 All ER 748 (PC)]. 'A petitioner in a divorce suit cannot obtain rel ..... X X X X Extracts X X X X X X X X Extracts X X X X
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