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TMI Blog1965 (9) TMI 2X X X X Extracts X X X X X X X X Extracts X X X X ..... . C. DESAI., S. C. MANCHANDA. JUDGMENT The judgment of the court was delivered by DESAI C. J.- The assessee, at whose instance the Income-tax Appellate Tribunal, Allahabad Bench, has submitted this statement of case to the court, earned income as managing agent of two companies. It is said to have entered into agreements made for adequate consideration with third parties, namely, Sri R. R. Morarka and Sri S. D. Garg, within the meaning of section 12-A of the Indian Income-tax Act for sharing the managing agency commission in the proportion of 7 to 1. During the assessment proceedings it claimed that it was liable to be assessed only on 7/8th of the income received as the managing agency commission from each of the two companies, the rem ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rd parties was liable to be deducted under section 10(2)(xv). On the other hand, it refused to go into that question, holding that a managing agent, who has entered into an agreement for consideration to share the managing agency commission with a third party can get the benefit of only section 12-A and is not entitled to fall back upon section 10(2)(xv) in the event of his failing to fulfil the condition required for the benefit of section 12-A. For this decision it relied upon Jhajharia Brothers Ltd. v. Commissioner of Income-tax. In other words, the Tribunal held that if by fulfilling the condition mentioned in section 12-A the assessee could get the benefit of its provision, it was not entitled to claim the benefit of section 10(2)(xv) ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tion 12-A of the Income-tax Act in respect of the sum of Rs. 23,750 ? " As regards the question originally framed by the Tribunal it is obvious from what we have stated above that it simply does not arise out of the order passed by it. It never went into the merits of the claim that the money paid to the third parties was deductible under section 10(2)(xv) and never held that it was not so deductible. Instead of going into the merits of the claim it refused to do so on the ground that the assessee was not entitled to the benefit of that provision, it being entitled solely to the benefit of section 12-A. We must, therefore, refuse to answer the question. It was suggested by Sri Brijlal Gupta that we should reframe the question; we cannot re ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f it had fulfilled the required condition. The question drafted by the Tribunal (in its original statement) is so different from it that we have no hesitation in saying that it never intended to refer it. Unless we are able to say that it intended to refer it through the question drafted by it we cannot amend the latter so as to bring into existence the former as the latter question is so entirely different from the former that we cannot say that the Tribunal intended to refer it by actually referring the other. We are supported by Petlad Turkey Red Dye Works Co. Ltd. v. Commissioner of Income-tax. If the assessee wanted the other question to be formulated, its remedy was to move this court under section 66(2) for mandamus requiring the Tri ..... X X X X Extracts X X X X X X X X Extracts X X X X
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