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TMI Blog1984 (4) TMI 133X X X X Extracts X X X X X X X X Extracts X X X X ..... f the capital employed for the purpose of relief under section 80J but in matters of other assessees the question of constitutional validity of the amendment supra is pending for disposal in the Hon'ble Supreme Court and, therefore, the issue be decided in accordance with the decision of the Hon'ble Supreme Court on the issue and as such the matter be sent back to the Commissioner (Appeals) to decide it accordingly. On the other hand, Shri K. Venkataraman, the learned departmental representative, contends that in view of the decision of two Hon'ble High Courts in the cases of Traco Cable Co. Ltd. v. CIT [1982] 138 ITR 385 (Ker.) and CIT v. K.N. Oil Industries [1982] 134 ITR 651 (MP). There is no question to accept the contention of the lear ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... The Benches of the Tribunal over here, where the Judicial Member is a party, is taking the view to decide the appeals on following the provisions of amended section vide which the liabilities are to be included for the purpose of computation of relief under section 80J in the computation of the capital employed. Therefore, we hold that the contention of the learned departmental representative is well founded and must prevail. Thus, following the aforesaid decision of the Hon'ble High Courts and that of the Tribunal, we hold that the authorities below are justified in excluding the liabilities in computing the capital employed for the purpose of providing relief under section 80J. Hence, we confirm the assessment order. The appeal is dismis ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... aw. The Madras Benches of the Tribunal have generally been following the practice of restoring the matter regarding section 80J to the ITO to await the decision of the Supreme Court. This procedure is in full accordance with the order of the Gujarat High Court to the effect that it is in the interest of the public and the revenue, being only with a view to save public time and cost. I am of the view that the Gujarat High Court decision being the only one covering this aspect of the matter, it would be proper to follow it also bearing in mind the Bombay High Court decision in CIT v. Smt. Godavaridevi Saraf [1978] 113 ITR 589. Having regard to the above position and on balance of convenience, I would set aside the ITO's computation of the ded ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... cision of the Tribunal in the case of Sundaram Fasteners Ltd., Madras, the Tribunal would be justified in vacating the findings of the Commissioner (Appeals) and the Income-tax Officer regarding the computation of the deduction under section 80J of the Income-tax Act, 1961, and restoring the matter of the Income-tax Officer for recomputation of the profit after the decision of the Supreme Court or the Madras High Court, regarding the retrospectivity of the amended section 80J (as amended by section 17 of the Finance (No. 2) Act, 1980) becomes available ?" 2. The point of difference was very clearly worded and the difference of opinion between my learned brothers is whether the decision of the Tribunal in the case of Sundaram Fasteners Ltd ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e to the Bench when it decided the case of Sundaram Fasteners Ltd. and as these High Courts have clearly laid down that the amended provisions should be applied and the borrowed capital should be deducted in arriving at the capital base, those decisions should be followed. This is an argument on merits. The point of difference referred to me is confined to the question whether the order of the Tribunal in the case of Sundaram Fasteners Ltd. should be relied upon or not. I will not, therefore, be able to go into the merits of the case and apply the rules laid down by these three High Courts. Anyway, since the matter is not finally decided by the Tribunal, I am of the opinion that no prejudice is caused to the interests of the revenue. As soo ..... X X X X Extracts X X X X X X X X Extracts X X X X
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