9911796707
TMI Blog1994 (4) TMI 70X X X X Extracts X X X X X X X X Extracts X X X X ..... and gains since it is a co-operative society engaged in collective disposal of the labour of its members. The stand having been negatived by both the assessing and the appellate authorities as well as the second appellate authority, i.e., the Appellate Tribunal, the petitioners have come before this court under articles 226 and 227 of the Constitution of India. The brief facts necessary to elucidate the questions raised appear in the very order of the Appellate Tribunal, vide annexure-7. The undisputed facts are that the membership of the petitioner-society is confined to unemployed diploma-holders in engineering and graduate engineers but exclude retired engineers. The members lose their membership when they get employment, which may ev ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rvision by them would not entitle them to the benefit of the section. Mr. Dash, learned counsel appearing for the petitioner, has urged the following questions for consideration : (1) The interpretation of the very question was earlier before the Tribunal in connection with another year's assessment where the view pressed by the assessee had been agreed to by order dated March 12, 1982, and the assessment for the year in question, i.e., 1973-74, was vacated. Since the order of the Tribunal is binding, if the Tribunal hearing the appeal for a subsequent year came to a different conclusion, it should have referred the matter to a higher Bench ; and (2) The words "collective disposal of labour" have to be interpreted in a liberal manner ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... cerned, since we do not intend to interfere with the findings of fact which must be taken to be binding and final, we do not think that the existence of an alternate remedy is an effective bar so far as the extraordinary jurisdiction is concerned as the question to be decided is only the interpretation of the relevant provision of the statute. Mr. Dash has tried to urge that actually what type of labour was dispensed by the members should be investigated and that the matter should be remanded for the purpose. We are afraid that such a plea is not available to be raised since the petitioner has chosen to invoke the jurisdiction of this court under articles 226 and 227 of the Constitution of India where, as we have observed, the findings of f ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... said to be attributable to dispensation of labour of the members directly. Similarly, if the members belong to any other discipline, the work executed in actual application of the discipline would be disposal of labour of the members. On the other hand, if the members are manual labourers as in a labour contract service co-operative society, and the work undertaken is executed by the manual labour of the members, the whole of its income would be exempted. A power of disposal always pre-supposes the possession of something to be disposed of. It is only when collective disposal is made of such a disposable commodity over which the society has control as inhering in its members that the income is directly attributable and to such disposal by ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ally derived from the labour of the members of the assessee would be exempt but not any income derived as a result of investment of capital or execution of any jobs by employed labour." The decision, according to us, indicated the correct position of law. The order of the single member Tribunal in annexure-3, though relating to an earlier assessment year, was delivered later on and therein the learned Member observed as follows: "....I may clarify that the labour of the graduate engineers in this context has to be understood in a broad sense, namely, including supervision of the work executed with the help of masons, daily labourers, electricians and the like.... Otherwise, the income of the society, in my opinion, has to be taken as th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ourers, their work was supervised by the members of the society because of their special training and skill. Such a case would be governed by the decision of the learned single member Tribunal as in annexure 3. But the facts here are quite different with a specific finding that no such supervision was made by the members and their only job was restricted like any other businessman to supervision by way of office management. It was as such not necessary to refer the matter to any higher Bench and at any rate a Division Bench of the Tribunal had also the authority to depart from the view expressed by the learned single member. In that view of the matter, we do not find any merit in the writ application which is, therefore, dismissed. D. M ..... X X X X Extracts X X X X X X X X Extracts X X X X
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