1988 (2) TMI 8

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..... es tax amounting to Rs. 43,78,875 from its customers and had deposited the same under protest With the Sales Tax Department in earlier years. The said sum was subsequently refunded by the Sales Tax Department in view of the Supreme Court judgment dated December 12, 1978, and was brought to tax under section 41(1) of the Income-tax Act, 1961, for the assessment year 1980-81. The petitioner appealed .....

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..... 74-75 and hence section 41(1) had no application to the petitioner's case. Thereafter, the Bench of the Appellate Tribunal referred the following question for the opinion of the third Member : "Whether, on the facts and in the circumstances of the case, the assessee was allowed the deduction within the meaning of section 41(1) of the Income-tax Act, 1961, in earlier years in respect of sales t .....

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..... tter. Sri Sudhir Chandra, learned counsel for the petitioner, however, urged that the petitioner had raised two more issues before the Appellate Tribunal to oppose the taxability of the sum of Rs. 43,78,875 but they were not referred to by the Judicial Member in his order and thus there was no decision of the Appellate Tribunal on those two issues. That being so, Sri Sudhir Chandra further urged .....

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..... the amount was not taxable in the assessment year 1980-81. The submission of Sri Sudhir Chandra is that both these issues were not touched upon by the Judicial Member in his order and thus there was no order of the Appellate Tribunal thereon and there being no order of the Appellate Tribunal on these two important issues, no reference would lie on these issues under section 256. We do not see an .....

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..... ioner under reference, provided a question of law arose from the Tribunal's findings. For the above reasons, we hold that no interference is needed in the matter under article 226 of the Constitution, as a statutory remedy of way of reference under section 256 is available to the petitioner. With the above observation, the writ petition is finally disposed of.  
Case laws, Decisions, .....

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