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TMI Blog1988 (8) TMI 38X X X X Extracts X X X X X X X X Extracts X X X X ..... t the reference under section 144B of the Income-tax Act, 1961, did not affect the jurisdiction of the Commissioner under section 263 of the Income-tax Act, 1961 ? (2) Whether, on the facts and in the circumstances of the case, the Tribunal was right in holding that the pendency of an appeal against the assessment order did not oust the jurisdiction of the Commissioner under section 263 of the Income-tax Act, 1961 ? (3) Whether, on the facts and in the circumstances of the case, the Tribunal was right in holding that the mere reopening of an assessment under section 147 of the Income-tax Act, 1961, did not affect the jurisdiction of the Commissioner under section 263 of the Income-tax Act, 1961 ? (4) Whether, on the facts and in the circ ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he reference under section 144B of the Act did not affect the jurisdiction of the Commissioner under section 263 of the Act. As regards question No. (2), learned counsel for the assessee was unable to point out any provision of law ousting the jurisdiction of the Commissioner under section 263 of the Act if an appeal was preferred by the assessee under the Act from the order of assessment passed by the Income-tax Officer. As held by the Tribunal, none of the issues dealt with by the Commissioner was the subject-matter of appeal. The Tribunal, therefore, was right in holding that pendency of an appeal against an order of assessment did not oust the jurisdiction of the Commissioner under section 263 of the Act. As regards question No. (3), ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... accordance with the provisions of the Molasses Control Order, 1961, and credits a portion of the price received by him to separate fund for erection of adequate storage facilities, is it a case of diversion of income or of application of income ? The test to decide this question, as held by the Supreme Court in CIT v. Sitaldas Tirathdas [1961] 41 ITR 367, is as follows (at page 374) : "In our opinion, the true test is whether the amount sought to be deducted, in truth, never reached the assessee as his income. Obligations, no doubt, there are in every case, but it is the nature of the obligation which is the decisive fact. There is a difference between an amount which person is obliged to apply out of his income and an amount which by the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ot deductible. The decisions in Poona Electric Supply Co. Ltd. v. CIT [1965] 57 ITR 521 and Amalgamated Electricity Co. Ltd. v. CIT [1974] 97 ITR 334, relied on by the assessee, are distinguishable on facts. In [1965] 57 ITR 521, the Supreme Court dealt with the question of appropriation made by an electrical undertaking by crediting the amounts to the Consumers' Benefit Reserve account. The Supreme Court held that they were part of the excess amount paid to the assessee and reserved to be returned to the consumer and hence the said amount would have to be deducted from the total income of the assessee. In Cochin State Power and Light Corporation Ltd. v. CIT [1974] 93 ITR 582 (Ker), on which reliance was placed by the Bombay High Court in ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s of selling molasses is carried on by the assessee and so long as the relevant provisions of the Molasses Control Order are in force. But the assessee's title to the fund is not lost. A part of the price of molasses received by the assessee is credited by the assessee to a separate fund to discharge an obligation imposed upon the assessee by the Molasses Control Order, 1961. This is not a case of diversion of income but of application of income and hence the Tribunal was right in holding that the sum of Rs. 62,200 received by the assessee and credited to the Molasses Storage Fund constituted a trading receipt and was taxable as its income. For all these reasons, our answers to all the four questions referred by the Tribunal are in the aff ..... X X X X Extracts X X X X X X X X Extracts X X X X
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