9911796707
TMI Blog1997 (9) TMI 36X X X X Extracts X X X X X X X X Extracts X X X X ..... ssee was rightly allowed by the Commissioner of Income-tax (Appeals) on the facts of the case ?" Learned counsel appearing for the assessee, at the very outset submitted that notwithstanding the fact that this statement of case has been sought by the High Court and the above question referred for its opinion, the court is not bound to answer the question. Before we deal with this contention, it would be pertinent to note the basic facts. The assessee had three tea gardens. In the assessment year 1985-86, the Assessing Officer held that the expenditure incurred on en bloc replantation was capital expenditure in nature. On appeal being preferred by the assessee, the Commissioner of Income-tax (Appeals) held that replantation expenditure was ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he replanting was in virgin area of the tea garden. In the absence of necessary finding the contention of the Revenue cannot be accepted." This finding can by no means be said to be unreasonable much less perverse. The Income-tax Officer in his assessment order has concluded that : "The replanting expenses is regarded as capital expenditure, because the replantation is expenses of en bloc area as good as new cultivation. This is added back as capital expenses." There are no reasons assigned for this conclusion. The Supreme Court in Patnaik and Co. Ltd. v. CIT [1986] 161 ITR 365, has held that the High Court was wrong in reappreciating the evidence, the question referred was itself framed on the assumption that it had to be decided on th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... stion. As a proposition of law, there can be no quarrel with the submission made by learned standing counsel, but this power to reframe a question can be exercised to clarify some obscurity in the question referred, or to pinpoint the real issue between the taxpayer and the Department or for similar other reasons : it cannot be exercised for reopening an enquiry on questions of fact or law which is closed by the order of the Tribunal. (See CIT v. Smt. Anusuya Devi [1968] 68 ITR 750 (SC)). The same judgment also holds that the High Court is not bound to advise the Tribunal on a question which did not arise out of the order of the Tribunal merely because the High Court called upon the Tribunal to state a case on that question. In the same v ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... and jurisdiction of the High Court to examine the findings of facts contrary to one given by the Tribunal and how far the High Court can interfere under section 256(1) if the findings or conclusion of the Tribunal are perverse. This is what the Supreme Court said in Kilasho Devi Burman (Smt.) v. CIT [1996] 219 ITR 214 : "The High Court in a reference under the taxation statutes exercises advisory jurisdiction in regard to questions of law. It is only when it has before it a question that asks whether the Tribunal has, upon the evidence on record before it, come to a conclusion which is perverse, that it may go into facts, for this is a question of law. A conclusion is perverse only if it is such that no person, duly instructed, could, upo ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
