9911796707
TMI Blog2003 (5) TMI 23X X X X Extracts X X X X X X X X Extracts X X X X ..... on involved in all these cases is, by and large the same, all these cases are disposed of by this common judgment. The respondent-assessee in I.T.A. Nos. 12 and 14 of 1999 is the same, namely, M/s. Oriental Kuries (P.) Ltd., Trichur. The respondent-assessee in I.T.A. Nos. 13 and 48 of 1999 is the same, namely, Assyrian Charities Kuri Ltd., Thrissur. In all the other cases, the respondent-assessees are different, who are conducting kuries at Thrissur. The assessment orders concerned in all these cases are for anyone of the assessment years from 1988-89 to 1992-93. Since the details of the assessment orders have not much relevance for the purpose of this case, they are not set out in detail. The brief facts necessary for disposal of these cases are as follows. The respondent-assessees in all these cases are conducting kuries at Thrissur. The question as already noted is as to whether the respondent-assessees are liable to return the profits arising out of the various kuries conducted by them as accruing on the date of termination of the kuries. The various items which formed the profit of the kuri business other than commission are veetha palisa and auction discount. The assessee ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... x Appellate Tribunal disposed of the appeals by separate orders except in one or two cases. The appeals filed by the Department were dismissed and the appeals filed by the assessees were allowed. In all these appellate orders, the Tribunal had relied on its earlier decisions, and held that when the assessee was following a particular method of accounting relating to the income from kuries, it is not for the Revenue to substitute its own method of accounting because that method was more palatable. Against the order of the Income-tax Appellate Tribunal, the Revenue has sought reference of certain questions of law and the same was referred in I.T.R. Nos. 33, 36 and 39 of 2000. The question of law referred in I.T.R. No. 33 of 2000 reads as follows: "Whether, on the facts and in the circumstances of the case and in the light of the finding of the Assessing Officer that the profit on terminated kuries accrues in the year in which the kuri has terminated and veetha palisa outstanding in respect of the terminated kuries in the relevant previous years has to be included in the assessee's income, the Tribunal is right in law in holding differently and in directing the officer to assess ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e said amount as income will accrue only when the claim of the defaulted subscribers had become stale and irrecoverable, and therefore, the method of accounting followed by the assessees is justified. Counsel further submitted that it is based on the findings entered by the Commissioner of Income-tax (Appeals) that the Tribunal has further stated that when it is found that the assessee is consistently following a particular method of accounting in respect of the veetha palisa and auction discount, the Assessing Officer cannot adopt a different method. Counsel accordingly submitted that though there is no definite finding by the Tribunal on the above factual situation, the conclusion reached by the Tribunal has to be sustained. Counsel further submitted that the decision of this court in Trichur Kuri Syndicate's case [1995] 211 ITR 365 has been rightly applied. Sri P. Balakrishnan, learned counsel appearing for the respondents, in I.T.A. Nos. 13 and 48 of 1999 had also made submissions on the above lines, and submitted that there is no scope for interference with the orders of the Tribunal. Sri N. Subramanyan, learned counsel appearing for the respondent, in I.T.A. No. 49 of 1999 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... in the auction discount account can really be treated as the income of the assessees on the date of forfeiture or on the date of termination of the kuries. This has not been done. Further, though the appeals were disposed of by the Tribunal in favour of the assessee, relying on its earlier decisions, in the case of the assessees and others, where it was held that when it is found that the assessee has been consistently following a particular method of accounting in respect of the income from kuries, it is not for the Revenue to substitute its own method of accounting because that method was more palatable. We have also noticed that the decision of this court in Trichur Kuri Syndicate Ltd. [1995] 211 ITR 365 was rendered on the basis of the facts found by the Tribunal. This court had noted that the assessee's explanation in relation to the surplus income from chitties was that subscribers sometimes used to make excess payment towards instalments due from them, and when the chitty was terminated and when the surplus was lying to the credit of the subscribers, the assessees treat them as amounts due to the subscribers liable to be refunded to them on their demand, and accordingly wa ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e factual matters pointed out above, and dealt with in Trichur Kuri Syndicate's case [1995] 211 ITR 365 (Ker). We are also not in a position to accept the findings entered by the Commissioner of Income-tax (Appeals) for deciding this matter, for the reason that divergent findings have been entered by the Commissioner of Income-tax (Appeals) on almost similar facts. According to us, the Tribunal ought to have considered the factual situation and entered a finding with regard to the relevant matters. The Tribunal should have applied their earlier decisions as also the decision of this court, only if the facts so found fit in with the decision of the Tribunal or of this court. In the absence of any findings of fact on the relevant matters, we are of the view that the orders of the Tribunal which are the subject-matter of the appeals and references cannot be sustained. We accordingly set aside the appellate orders of the Tribunal in all these cases and direct the Tribunal to consider the matter afresh in accordance with law and in the light of the observations made in this judgment. In these circumstances, we decline to answer the question referred in I.T.R. Nos. 33, 36 and 39 of 200 ..... X X X X Extracts X X X X X X X X Extracts X X X X
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