STATE BANK OF INDORE VS COMMISSIONER OF INCOME-TAX, 1998 PTD-MADHYA-PRADESH-HIGH-COURT-INDIA 3229 (1996)

Income-tax---

----Reference---Special deduction ---Inter corporate dividends---Whether deduction should be allowed on net dividend---Question of law to be referred---Indian Income Tax Act, 1961, Ss.80-M & 256(2).

The Commissioner of Income-tax issued a notice to the assessee under section 263 of the Income Tax Act, 1961, on the ground that the Income-tax Officer erred in allowing deduction under section 80-M at 60 per cent. of the gross dividend and passed orders accordingly. The assessee's appeal to the Tribunal was dismissed. On a reference application under section 256(2):

Held, whether the Tribunal was right in holding that deduction under section 80-M should be allowed on net dividend was a question of law to be referred.

Distributors (Baroda) (Pvt.) Ltd. v. Union of India (1985) 155 ITR 120 (SC) ref.

J.W. Mahajan for the Assessee.

D.D. Vyas for the Commissioner.

JUDGMENT

A.R. TIWARI, J.---The assessee (State Bank of Indore) has filed this application under section 256(2) of the Income Tax Act, 1961 (for short "the Act") arising out of the order passed by the Tribunal on January 9, 1991, in I.T.A. No.388/Ind of 1986 seeking direction to the Tribunal to state the case and refer the under noted questions, categorised as of law, for our opinion:

"(i) Whether, on the facts and in the circumstances of the case, the Commissioner of Income-tax had reasons to set aside the order of the Income-tax Officer under section 263 of the Income-tax Act and was correct in directing him to make a fresh assessment?

(ii) Whether the Income-tax Appellate Tribunal was correct in applying the decision reported in 155 ITR 120 (SC) to the facts of the case before it?

(iii) Whether, on the facts and in the circumstances of the case, the Tribunal was right in holding that deduction under section 80-M should have been allowed on net dividend?

(iv) Whether, on the facts and in the circumstances of the case, the Tribunal was justified in holding that the Commissioner was entitled to exercise revisional powers under section 263 when the assessment order was subject to appeals before the Commissioner of Income-tax (Appeals) and the Tribunal?

(v) Whether the Tribunal was justified in holding that on being subject of appeals, the assessment order was not merged in the appellate order?"

Briefly stated, the facts of the case are that the applicant filed returns of income on June 5, 1981, for the assessment year 1981-82. It was assessed under section 143(3)/144-B of the Act on March 20, 1984. The applicant filed an appeal before the Commissioner of Income-tax (Appeals) which was rejected in part on August 30, 1984. The applicant then filed an appeal before the Tribunal which was decided on January 21, 1988. In the meantime the non-applicant has issued a notice under section 263 of the Act stating that the Income-tax Officer erred in allowing deduction under section 80-M at 60 per cent. of the gross dividend of Rs.2,64,572. Objections were preferred by the applicant on February 15, 1986, and February 28, 1986. The non-applicant passed the order on March 27, 1986. The applicant felt aggrieved and thus preferred an appeal before the Tribunal which was registered as I.T.A. No.388/Ind of 1986 for the assessment year 1981-82. This appeal was directed against the order, dated March 27, 1986, passed under section 263 of the Act. The appeal was dismissed on January 9, 1991. The applicant then filed an application under section 256(1) of the Act which was dismissed on September 23, 1991, on the assumption that there were no referable questions of law. Thereafter, the applicant has filed this application under section 256(2) of the Act.

We have heard Shri J. W. Mahajan, learned counsel for the applicant/assessee, and Shri D.D. Vyas, learned counsel for the non- applicant/Department.

At the stage of arguments, counsel for the applicant limited the application to the lone question, as extracted below, and did not press other four questions, as noted above:

"Whether, on the facts and. in the circumstances of the case, the Tribunal was right in holding that deduction under section 80-M should have been allowed on net dividend?"

We have perused the order, dated September 23, 1991. The Tribunal elected not to state the case and refer the questions on observations that the order of the Tribunal was based upon the amended provisions of section 80-AA and on the decision in Distributors (Baroda) (Pvt.) Ltd. v. Union of India (1985) 155 ITR 120 (SC). Counsel submitted that the aforesaid decision is inapplicable to the instant case and that the Tribunal erred in holding that the deduction under section 80-M should have been allowed on net dividend. He submitted that the conclusion of the Tribunal based on section 80-M did give rise to a question, of law and is required to be considered and answered by this Court.

After considering the submission, we are satisfied that the aforesaid question, as regards deduction under section 80-M does arise out of the order of the Tribunal. Accordingly, we call upon the Tribunal to state the case and refer the aforesaid lone question for our consideration and opinion.

This miscellaneous civil case is decided in terms indicated above but without any order as to costs.

Counsel fee is, however, fixed at Rs.750, for each side, if certified.

A copy of this order shall be transmitted to the Tribunal immediately. The Tribunal shall make an endeavour to comply with the direction of the Court within six months from the date of the receipt of the copy of this order.

M.B.A./1642/FCOrder accordingly.