9911796707
TMI Blog1984 (9) TMI 77X X X X Extracts X X X X X X X X Extracts X X X X ..... r of the Income-tax Officer and directing to make three separate assessments of the assessee-firm instead of making only one assessment for the entire accounting year ?" 2. The facts leading to the present reference briefly are as follows : 2.1 During the accounting period relevant to the assessment year under consideration, one of the partners died on 21-1-1975. The remaining partners admitted the widow of the deceased partner and her minor son to the benefits of partnership. This firm dissolved on 9-6-1975 when widow of the deceased and one of the earlier partners retired from the firm so that from 10-6-1975, two surviving adult partners and a minor constituted a new firm. Before the end of the relevant accounting year, the minor bec ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... case, because we were sure that the department would drag us before the Hon'ble Gujarat High Court and then before the Supreme Court, which would cause us undue hardships by waste of time and money. The tax effect in our case is not very big. Moreover, it is certain that the Hon'ble Gujarat High Court is bound by their own decision in the case of Harjivandas Hathibhai's case, and so fate of the Income-tax Department appeal before the Hon'ble Gujarat High Court is evident and when the Hon'ble High Court has decided the same point against the Income-tax Department it is futile to give them permission to file appeal before the Hon'ble Gujarat High Court. The point of law decided by the Gujarat High Court against the Income-tax Department ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tely the Supreme Court decision is in favour of the revenue, the order shall be rectified in appropriate cases without being bound by limitation, if any. 4. To carry the matter to the Supreme Court in each and every case solely on the ground that decision of the High Court under consideration is not acceptable. 4.2 Basically, the proceeding for assessment, appeal, etc., is not proceeding in nature of lis or adjudication of civil dispute and, therefore, the revenue officials exercising power to assess and recover tax are not acting as judges deciding litigation between State and taxpayer ; they are the administrative authorities, whose function and powers are to ascertain correct income and tax thereon in each case. This presupposes in ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... referred for the opinion of Third Member : " Whether, on the facts and in the circumstances of the case, the question as proposed by the Commissioner of Income-tax, Surat, is required to be referred to the Hon'ble Gujarat High Court for its opinion ?" THIRD MEMBER ORDER Per Dr. V. Balasubramanian, Vice President --- Consequent to a difference of opinion between the two learned Members before whom an application for reference to the Hon'ble High Court of a question of law came up for consideration, the following point of difference is referred to : " Whether, on the facts and in the circumstances of the case, the question as proposed by the Commissioner of Income-tax, Surat, is required to be referred to the Hon'ble Gujarat Hig ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... mber. In Application No. 87 of 1980, decided on 15-9-1980, in the matter of Vipinchandra D. Shah, the Hon'ble Gujarat High Court has laid down that even though there is a decision of the Hon'ble High Court on a question of law, the Tribunal should refer the matter under section 256(1) of the Income-tax Act, 1961. Even though there are decisions to the contrary of other High Courts such as the Punjab and Haryana High Court in CIT v. Shiv Parshad [1984] 146 ITR 397, in the light of the binding decision of the Hon'ble Gujarat High Court, the Tribunal has no option but to make the reference. I, therefore, agree with the learned Judicial Member that a reference must be made though not for the reasons stated by him. The matter will go back to the ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
