GANGA CUT PIECE CENTRE VS COMMISSIONER OF INCOME-TAX
1999 P T D 382
[225 I T R 839]
[Madhya Pradesh High Court (India)]
Before A.R. Tiwari and S. B. Sakrikar, JJ
GANGA CUT PIECE CENTRE
Versus
COMMISSIONER OF INCOME-TAX
M.C.C. No.48 of 1985, decided on 19/12/1995.
Income-tax---
----Reference---Pendency of same issues before Supreme Court--Is not ground for directing a reference to High Court---Indian Income Tax Act, 1961, S.256(2).
Pendency of the same issues before the Supreme Court is no ground for directing a reference to the High Court under section 256(2) of the Income Tax Act, 1961.
CWT v. Smt. Usha Devi (1990) 183 ITR 75 (MP) and Ganga Cut Piece Centre v. CIT (1996) 219 ITR 201 (MP) fol.
Ganga Cut Piece Centre v. CIT.(1982) 137 ITR 274 (MP) ref.
K.N. Putambekar for the Assessee.
D.D. Vyas for the Commissioner.
JUDGMENT
A.R. TIWARI, J.---The applicant-assessee has filed this application under section 256(2) of the Income Tax Act, 1961 (for short, "the Act").
Briefly stated, the facts of the case are that the applicant is a partnership firm carrying on the business of sale and purchase of cloth. Initially, Smt. Gangabai and her son Ramachandra, were partners of the firm in equal shares. The firm came into existence on March 24, 1974, and was got registered under the Act. Subsequently, another partner, named Smt. Indirabai, was introduced and the shares were revised. The applicant applied for registration of this newly constituted firm under the Act for the assessment year 1976-77. Registration was refused by the Income-tax Officer but in appeal the Appellate Assistant Commissioner allowed the registration of the firm. The non-applicant/Department preferred an appeal to the Income-tax Appellate Tribunal, Indore. The appeal was allowed and the registration was refused. Aggrieved, the applicant filed the application under section 256(1) of the Act The Tribunal accepted the application only in part and referred the question as to whether the Tribunal was correct in holding that the firm was not entitled to registration for the assessment year in question. The case was registered as Miscellaneous Civil Case No.244 of 1979. This Court decided this miscellaneous civil case on April 27, 1981, against the applicant. The applicant filed Special Leave Petition (Civil) No-7318 of 1981. On September 26, 1983, the case, as contended, stands registered as Civil Appeal No.8445/(NT) of 1983. A similar question arose for the subsequent year, i.e., 1977-78. The applicant was assessed for the assessment year 1977-78, accounting period ending in Diwali, 1976. The applicant again claimed registration of the firm for this year but it was refused on the ground of the earlier adverse order (Annexure "B"). The applicant then preferred an appeal to the Appellate Assistant Commissioner of Income-tax. In appeal, the order of the Income-tax Officer as regards refusal of registration of the firm was maintained with certain observations. The applicant then preferred a second appeal to the Tribunal. The Tribunal allowed the appeal in part but maintained the order so far as refusal of registration was concerned (Annexure "D"). The applicant then filed an application under section 256(1) of the Act proposing as many as 11 question allegedly of law. The Tribunal rejected the application vide order`'' dated August 10, 1984 (annexures "E" and "E-1 "). The Tribunal rejected the application in the face of the earlier order. The applicant thereafter has filed this application under section 256(2) of the Act seeking a direction to the Tribunal to state the case and refer the questions.
We have heard Shri K.N. Putambekar, learned counsel for the applicant/assessee and Shri D.D. Vyas learned counsel for the non?applicant/Department. .
Shri Putambekar submitted that the Tribunal be directed to state the case and refer the proposed questions in view of the pendency of similar questions before the Supreme Court in the aforesaid civil appeal.
Shri Vyas, on the other hand, submitted that pendency of the case before the Supreme Court does not furnish any valid ground for seeking the direction about reference of the questions and that if the applicant succeeds in the Supreme Court he may apply for rectification before the Income-tax Officer under section 154 or before the Appellate Tribunal under section 254(2) of the Act within the period prescribed for that purpose Counsel, therefore, submitted that this application is inutile and that the applicant is not without remedy.
Earlier the question of registration is decided against the applicant The decision is in Ganga Cut Piece Centre v. CIT (1982) 137 ITR 274. N change in the fact situation is indicated.
In CWT v. Sint. Usha Devi (1990) 183 ITR 75 (MP,) it is held that the pendency of the same issues before the Supreme Court is no ground for directing the reference. The point of controversy stands decided by this Court against the assessee and the Tribunal having followed the decision of this Court, we hold that no referable questions arise in this case. An identical case (Miscellaneous Civil Case No. 125 of 1988 (Gangs Cut Piece Centre v CIT (1996) 219 ITR 201) has already been rejected.
That being so we reject the application leaving the applicant free to resort to appropriate remedy when the occasion so arises, as noted above, if permissible under the law.
There shall, however, be no order as to costs.
Counsel fee on either side shall, however, be Rs. 750, if certified.
M.B.A./1773/FC???????????????????????????????????????????????????????????????????????????????? Application rejected.