9911796707
TMI Blog1996 (11) TMI 23X X X X Extracts X X X X X X X X Extracts X X X X ..... n the meaning of s. 80J(4)(ii) of the IT Act. For that purpose reliance is placed upon the judgment of the Bombay High Court in Capsulation Services (P) Ltd. vs. CIT (1973) 91 ITR 566 (Bom) : TC 25R. 576, but that said judgment has been disapproved on this question by the Supreme Court in Bajaj Tempo Ltd. vs. CIT (1992) 104 CTR (SC) 116 : (1992) 196 ITR 188 (SC) : TC 25R.568, though on another aspect of the matter the judgment of Bombay High Court has been approved by the Supreme Court. However, the Supreme Court has clearly pointed out that the crucial word in that section is "formed" and importance should be given to that word and not to the word "transfer". The Supreme Court observed as follows : "But we do not approve of the Bombay vi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nd, therefore, he held that the assessee is not entitled to s. 80J relief. Learned counsel for the assessee while disputing this action of the CIT(A) observed that simply because certain machineries have been obtained by the assessee in respect of timber and slate business of the assessee on hire, the same would not amount to transfer and, therefore, it is not a case of machinery which is transferred to a new business. The learned Departmental Representative, on the other hand, in this respect relied on the order of the CIT(A). After taking into consideration the rival submissions and careful perusal of facts, we find that the business of slate and exploitation of forests has not been done or formed by taking over the business of the ol ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... to this Court is not properly framed and this Court should direct the Tribunal to reframe the question and submit the reference if it thinks necessary. In our opinion, it is not necessary in this case because of the facts set out in the order of the Tribunal itself. Secondly, we find that this relates to the asst. yr. 1977-78 and the reference itself has been pending in this Court for more than 13 years. In such circumstances, we do not think it a proper course on the facts of this case to request the Tribunal to make a fresh reference if so advised on a reframed question. As the materials are available before us we decide the case on the basis of the Supreme Court in decision Bajaj Tempo Ltd. vs. CIT (supra). 5. The learned Advocate-Gen ..... X X X X Extracts X X X X X X X X Extracts X X X X
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