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TMI Blog1980 (2) TMI 25X X X X Extracts X X X X X X X X Extracts X X X X ..... y amount of Rs. 49,521 could not be said to have accrued or arisen in India ? " So far as this question is concerned, it is fully covered by our decision rendered in ITR No. 270 of 1977, decided today. Divan C.J., speaking for this Bench, has answered an identical question of law arising from similar facts against the revenue and in favour of the assessee. In the light of the aforesaid decision, the aforesaid question is answered in the affirmative, i.e., in favour of the assessee and against the revenue. In the present case, two additional questions Nos. 2 and 3 are also referred to this court by the Tribunal at the instance of the assessee. To these questions a serious objection has been raised on behalf of the revenue to the effect t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n was not taxable as according to the assessee, the provisions of section 5(1)(c) of the Act were not applicable to the said remuneration. The ITO negatived both the contentions of the assessee. The assessee preferred an appeal before the AAC, A-Range, Baroda. That appeal was wholly dismissed and the order passed by the ITO was fully maintained by the AAC. The assessee thereafter preferred a second appeal to the Tribunal at Ahmedabad. The Tribunal partially allowed the appeal in so far as the retention remuneration received during the relevant period by the assessee was concerned. The Tribunal took the view that the said remuneration was not earned by the assessee in India and hence it had not accrued or arisen in India and, therefore, it w ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f the Tribunal which was against him. Instead he sought a reference of two more questions of law arising from the adverse part of the Tribunal's order only on the basis of the reference application of the revenue and requested the Tribunal to refer these questions which were decided against the assessee for the decision of this court. The revenue objected to this attempt on the part of the assessee and submitted that the assessee could not seek a reference on the questions which were held against him by the Tribunal by merely relying upon the reference application of the revenue and without filing a separate application of his own. The Tribunal overruled this objection. The Tribunal took the view that it was all along referring all the rele ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... er the provisions of the Income-tax Act, 1961 ? (3) If the answer to the aforesaid question is in the affirmative, whether the said amount of living allowance is exempt under section 10(14) or clause (v) of section 16 of the I.T. Act ? " Now, so far as this controversy centring round the reference regarding additional questions Nos. 2 and 3 is concerned, it has been set at rest by recent decision of the Supreme Court in CIT v. [1980] 121 ITR 572. The Supreme Court: in the aforesaid decision was concerned with an identical question which has been posed for our consideration in this reference. The Supreme Court has in terms observed on this aspect that in every case, it is only the party applying for a reference who is entitled to specify ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s not competent to refer these questions at the instance of the non-applicant and the reference on these questions must be held to be void. As narrated by us earlier, the Tribunal's order under s. 254 was partly in favour of the assessee and partly against him. This is not a case when the Tribunal's order is wholly in his favour. Hence, the non-applicant assessee could not have demanded reference of questions Nos. 2 and 3 for our decision without undergoing the procedure of s. 256(1). We cannot entertain such a void reference. Accordingly, we decline to answer questions Nos. 2 and 3 which are referred to us for our decision at the instance of the assessee who was a nonapplicant before the Tribunal. Before parting with this question we mus ..... X X X X Extracts X X X X X X X X Extracts X X X X
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