COMMISSIONER OF INCOME-TAX VS ABHAY KUMAR JASWANT KUMAR, 1999 PTD-MADHYA-PRADESH-HIGH-COURT-INDIA 343 (1996)

Income-tax---

----Reference---Question of law of which reference sought concluded by earlier decision of Court---Special leave petition pending in Supreme Court from earlier decision---No referable question of law arises merely because SLP is pending---Indian Income Tax Act, 1961, S.256.

Held. that reference was sought on the ground that a special leave petition was pending in the Supreme Court against the decision rendered in CIT v. Mithalal Ashok Kumar (1986) 159 ITR 209 (MP.). The question of law raised in the present application stood concluded by the decision of the Madhya Pradesh High Court in CIT v. Mithalal Ashok Kumar (1986) 159 ITR 209. Pendency of same issues before the Supreme Court was no ground for directing reference. No referable question of law arose.

CWT v. Usha Devi (1990) 183 ITR 75 (MP) and Ganga Cut Piece Centre v. CIT (1996) 219 ITR 201 (MP) fol.

CIT v. Mithalal Ashok Kumar (1986) 159 ITR 209 (MP) and CIT v. Mithalal Ashok Kumar (1986) 158 ITR 755 (MP) ref.

D.D. Vyas for the Commissioner.

G.M. Chaphekar with S.S. Samvatsar for the Assessee.

JUDGMENT

A.R. TIWARI, J. ---Miscellaneous Civil Case No.240 of 1989 was listed today for final hearing. On the request of the parties, Miscellaneous Civil Case No.225 of 1990 and Miscellaneous Civil Case No.226 of 1991 are also listed through supplementary cause list and all these three cases entailing common questions of facts and law are heard analogously and are being disposed of by this common order.

These applications are filed by the Commissioner of Income-tax Bhopal, under section 256(2) of the Income Tax Act, 1961.

In Miscellaneous Civil Case No.240 of ,4989, the undernoted question of law is purposed for a direction to the Tribunal to state the case and refer the same:

"Whether, on the facts and in the circumstances of the case, the Tribunal was right in law in dismissing the appeal on the basis of its decision in Mithalal Ashok Kumar when the said decision was not accepted by the Department?"

In Miscellaneous Civil Case No.225 of 1990, the undernoted question of law is purposed for direction to the Tribunal to state the case and refer the same:

"Whether, on the facts and in the circumstances of the case, the Tribunal was right in dismissing the Departmental appeal when the decision of the High Court in CIT v. Mithalal Ashok Kumar (1986) 159 ITR 209 was not accepted and special leave petition is pending?"

In Miscellaneous Civil Case No.226 of 1991, the undernoted questions of law are purposed in the application for a direction to the Tribunal and state the case and refer the same:

"(A) Whether, on the facts and in the circumstances of the case, the Income-tax Appellate Tribunal was right in dismissing the Departmental appeals when the decision in Mithalal Ashok Kumar was pending before the Supreme Court?

(B) Whether, on the facts and in the circumstances of the case, the Income-tax Appellate Tribunal was right in dismissing the Department's appeal against the order of the Appellate Assistant Commissioner allowing continuation of the Madhya Pradesh in CIT v. Mithalal Ashok Kumar (1986) 159 ITR 209 was not accepted by the Department and special leave petition is pending?"

We have heard Shri D.D. Vyas, learned counsel for the applicant, and Shri G.M. Chaphekar, learned senior counsel, with Shri S.S. Samvatsar, for the nor-applicants in all these cases.

Admittedly, the questions stand concluded by the decisions of this Court in CIT v. Mithalal Ashok Kumar (1986) 159 ITR 209 and CIT v. Mithalal Ashok Kumar (1986) 158 ITR 755.

CIT V. Mithalal Ashok Kumar (1986) 158 ITR 755 (MP) is referred in CIT v. Mithalal Ashok Kumar (1986) 159 ITR 209 (MP). The reference in all these cases is sought only on the ground that special leave petition is pending against the decision rendered by the Court in CIT v. Mithalal Ashok Kumar case (supra).

It is an admitted ,position that the point projected in these applications in the shape of the questions stands concluded by the decision rendered by this Court. Pendency of the same issues before the Supreme Court is not shown to be the ground for making the direction to state the case and refer the questions.

In CWT v. Smt. Usha Devi (1990) 183 ITR 75 (MP.), it is held that pendency of same issues before the Supreme Court is no ground or directing the reference. The same view is taken by this Court in Miscellaneous Civil Case No. 125 of 1988 (Gangs Cut Piece Center v. CIT (1996) 219 ITR 201) and Miscellaneous Civil Case No.48 of 1985 (Gangs Cut Piece Center v. CIT), decided on December 19, 1995, (1997) 225 ITR 839.

Nothing substantial is urged to take a different view in the matter.

In the circumstances, we find that there is no referable question of law. Accordingly, we reject all these three reference, applications, but without any orders as to costs. Counsel fee in each case for each side is, however, fixed at Rs.750, if certified.

Retain this order in Miscellaneous Civil Case No.240 of 1989 and place it copy each in the connected cases.

M.B.A./1774/FC ??????????????????????????????????????????????????????????????????????????????? Application rejected.