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TMI Blog1984 (8) TMI 174X X X X Extracts X X X X X X X X Extracts X X X X ..... s correct in law in holding that only the net dividend received from foreign companies and not the gross dividend should be taken as the taxable income ?" 2. The relevant facts in brief are that the assessee is a resident and ordinarily resident. He filed a return on 21-6-1980 admitting a foreign income of Rs. 83,736, which represented gross dividends received at UK. However, vide his letter, dated 24-2-1982, the assessee contended that only the net income after deduction of tax deducted at source should be taxed and not the gross income. The ITO rejected the assessee's plea and thereby taxed the gross amount of dividend income received in U.K. On appeal, the AAC reversed the order of the ITO and directed him to tax only the net dividend. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... to 31-1-1984. Therefore, we hold that the contention of the learned counsel for the assessee is substantiated and as such we accept it. The reason is that the reference is to be allowed if it is proved that the application in the case, which is followed by the Tribunal in deciding the assessee's appeal in passing the impugned order, has been allowed, otherwise not. The departmental representatives are not at all filing copies of order relied upon by them to substantiate their contentions even if time is given to do so, rather they take it lightly and go on criticising the Commissioner stating therein that their demands are not met by him. It is for the Commissioner to look into it as the Tribunal is to allow or accept a contention if the sa ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... AX ACT, 1961 -- Whereas we are unable to agree on the point set out below for the assessment year 1979-80, we refer the following point of difference of opinion to the President for reference to Third Member, under section 255(4) of the Act : "Whether, on the facts and in the circumstances of the case, the question of law proposed by the Commissioner of Income-tax does arise out of the order of the Tribunal and should be referred to the Madras High Court ?" THIRD MEMBER ORDER Per Shri M.R. Sikka, Vice President -- There being difference of opinion between the learned Judicial Member and the learned Accountant Member, the following question has been referred to me for decision, as Third Member : "Whether, on the facts and in the circ ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... oing through the record, we directed the departmental representative to file the copy of the order of the Tribunal in the reference applications for the assessment year 1975-76 and the departmental representative has failed to do so up to 31-1-1984. Therefore, we hold that the contention of the learned counsel for the assessee is substantiated and as such we accept it. The reason is that the reference is to be allowed if it is proved that the application in the case, which is followed by the Tribunal in deciding the assessee's appeal in passing the impugned order, has been allowed, otherwise not. The departmental representatives are not at all filing copies of the orders relied upon by them to substantiate their contentions even if time is ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the High Court. I am, therefore, of the opinion that when the very point at issue has been referred to the High Court in the case of the assessee for the assessment years 1975-76 and 1978-79, it is necessary, for the sake of consistency, that the present case should also be referred to the High Court. I, therefore, agree with the learned Accountant Member. 6. The learned representative of the department states that the observations made by the learned Judicial Member, reproduced in para 3 above, are factually incorrect and so the same should be expunged. The learned representative of the assessee has no objection to the same. However, I feel that I would be exceeding my jurisdiction as a Third Member if I were to exclude the aforesaid re ..... X X X X Extracts X X X X X X X X Extracts X X X X
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