9911796707
TMI Blog1990 (6) TMI 107X X X X Extracts X X X X X X X X Extracts X X X X ..... he same in the case of the same assessee, though it was for a different year but there was no change in the facts or material whatsoever? 4. Could the Tribunal come to a conclusion totally contradictory to the conclusion reached by the earlier members manning the same Tribunal on the same set of facts? [1977] 110 ITR 453 (Mad.) 5. Was the Tribunal not bound, on the principles of natural justice and judicial dealing, to not to go behind the findings reached in prior assessment year when no fresh fact or circumstances were brought to light, either by material already on record or by any additional evidence? [1967] 64 ITR 388 (AP) 6. Was the Tribunal justified in reopening its own finding reached in an earlier year's assessment proceedings after due enquiry, in a subsequent year when the earlier finding was not admittedly arbitrary or perverse and no fresh facts were found in the subsequent assessment year? [1983] 33 CTR (Mad.) 327 7. Would such a conclusion as arrived at by the Tribunal this year without any fresh facts or material, be not perverse and shake the confidence of the public in judicial procedure as the finding recorded last year directly covered the issue in this ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he learned AAC confirmed the order of the ITO. 3. Against the aforesaid order, the assessee filed appeal to the Tribunal, and it was urged on behalf of the assessee by his counsel that the assessee's claim was allowable u/s 57(iii) of the IT Act, 1961 and that, in respect of assessment year 1980-81, the Tribunal had accepted similar claim of the assessee. A copy of the said order of the Tribunal, being ITA No. 1966/Del/85 dated30th December, 1986, was placed on record. In particular, emphasis was laid on the observations of the Tribunal in paras 5 6 and it was urged that the matter being fully covered by the said judgment of the Tribunal the assessee's claim should be accepted for this year also. 4. The Tribunal, after considering the facts of the case and the rival submissions, pointed out that it had been determined by their Lordships of the Hon'ble Supreme Court in the case of CIT v. Rajendra Prasad Moody [1978] 115 ITR 519, 522, that--- "What section 57(iii) requires is that the expenditure was to be laid out or expended wholly and exclusively for the purpose of making or earning income. It is the purpose of the expenditure that is relevant in determining the applicabil ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... v. CIT [1967] 63 ITR 166 (Mad.); (7) Mannalal Ratanlal v. CIT [1965] 58 ITR 84 (Cal.); (8) M.M. Thapar v. CIT [1978] 114 ITR 331 (Cal.); (9) Smt. Padmavati Jaykrishna v. CIT [1975]101 ITR 153 (Guj.); (10) T.S. Krishna v. CIT [1973] 87 ITR 429 (SC); (11) Basant Kumar Aditya Vikram Birla v. CIT [1968] 70 ITR 657 (Cal.); and (12) CIT v. Mrs. Indumati Ratanlal [1968] 70 ITR 353 (Guj.)." 5. They further observed as below : "One of the pleas taken - income of the cases mentioned above was that, but for the borrowing the assessee would have liquidated the fixed deposit carrying interest and, therefore, the interest on borrowings should be allowed by way of deduction against the interest from FDRs. It was held that the nexus between the borrowing and fixed deposits is too remote as such there could be no justification to make the deductions. These observations apply pro tanto to the facts of the present case." 6. The assessee's learned counsel had tried to distinguish the aforesaid case law by pointing out that in the said case it was the individual liability of the assessee that was being sought to be liquidated by borrowing the funds from the banks, whereas in the asse ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Nos. 2 to 9 and 11 raise issues as to whether the subsequent Bench of the Tribunal could take a different view from its judgment in an earlier year's assessment in the case of the same assessee. Inasmuch as the aforementioned judgment of the Hon'ble Supreme Court concludes the issue in the present appeal, and it was not brought to the attention of the earlier Bench, it would not be possible to say that a referable question of law arises in respect of the aforesaid aspect, because the judgment of the Hon'ble Supreme Court overrides the order of the Tribunal. So no useful purpose would be served on the facts of the present case by referring the questions as proposed by the assessee for the valued opinion of their Lordships. 10. Similar observations apply with regard to Question No. 10. Reference to a Full Bench may be justified if the judgment of the Hon'ble Supreme Court is not. available. But once the issue is concluded by the Supreme Court, no useful purpose would at all be served by referring the matter to a Full Bench of the Tribunal. 11. Accordingly, the Reference Application stands rejected. Per V.P. Elhence, Judicial Member --- I have carefully gone through the order ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the following question is referable to the Hon'ble High Court as a mixed question of fact and law : 'Whether on the facts and in the circumstances of the case the interest payment of Rs. 7,785 on the borrowing from the bank, was deductible from the interest received by the assessee from. FDRs with the banks?." ORDER Ch. G. Krishnamurthy, President --- On account of a difference of opinion as to whether a question of law arises out of the order of the Tribunal in ITA No. 5243 (Del.) of 1985 relating to the assessment year 1981-82, the following point of difference has been referred to me as Third Member under section 255(4) of the Income-tax Act : "Whether on the facts and in the circumstances of the present case, the following question is referable to the Hon'ble High Court as a mixed question of fact and law:--- "Whether on the facts and in the circumstances of the case the interest payment of Rs. 7,785 on the borrowing from the bank, was deductible from the interest received by the from FDRs with the banks?"" 2. The brief facts are : The assessee was in receipt of, inter alia, interest on fixed deposits aggregating to Rs. 22,551. The assessee borrowed certain sum ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on of the Supreme Court in the case referred to above. In paragraph 8 of his order the learned Accountant Member observed : "8. It is in the setting of the aforesaid facts that we have to see whether the questions of law, as proposed by the are referable questions of law. Question Nos. 1, 12 13 are, no doubt, mixed questions of fact and law. But, the answer to them is self-evident in view of the judgment of their Lordships of Hon'ble Supreme Court in the case of CIT v. Rajendra Prasad Moody. referred to above. No useful purpose would, therefore, be served by referring these questions to the Hon'ble High Court, as the answer to them has already been concluded by the above judgment of the Hon'ble Supreme Court ." As I have already mentioned in respect of the other questions, he held them to be questions of fact. 4. But the learned Judicial Member did not agree with the above view expressed. He held that when in 8 of the order of the learned Accountant Member, he recognised that question Nos. 1, 12 13 were mixed questions of law and fact, they should have been referred to the Hon'ble High Court notwithstanding that there was a decision of the Supreme Court in the case of Raj ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
