COMMISSIONER OF INCOME TAX vs. STELLABEN D/O.JIVANLAL KINARI-WALA

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ITA/219/1999HC GujaratGJHC24024958199909 December 2004Author: HONOURABLE MR. JUSTICE D.A.MEHTA,HONOURABLE MS. JUSTICE HARSHA DEVANI2 pages

AI SummaryRemanded

What did the High Court hold?

The High Court did not decide the questions of law on their merits. Instead, the Court, in light of an order made by the Apex Court on 22-03-2004 in Review Petition Nos.1682-1737 of 2003 and Civil Appeal Nos.6148-6157 of 1998 and cognate matters, directed the Income Tax Appellate Tribunal to draw up a statement of case and refer the aforementioned questions of law for the opinion of the High Court. The Court made the rule absolute, indicating that the application by the revenue was to be proceeded with by way of a reference.

What were the facts?

This case involves an application by the Commissioner of Income Tax (the revenue) against an order of the Income Tax Appellate Tribunal (ITAT). The ITAT had confirmed an order passed by the Commissioner of Income Tax (Appeals) which directed the exclusion of income from 4 BOIs (Beneficial Ownership Interests) from the income of the assessee, Stellaben D/o. Jivanlal Kinariwala. The specific assessment year(s) are not mentioned in the provided text. The revenue sought to challenge the ITAT's decision by raising questions of law before the High Court.

What were the issues?

The High Court was asked to decide two questions of law arising from the ITAT's order. 1. Whether the Appellate Tribunal was right in law and on facts in confirming the order of the Commissioner of Income-tax (Appeals) directing the exclusion of the income of 4 BOIs from the income of the assessee. 2. Whether the Appellate Tribunal ought not to have appreciated that the ratio of the decision in the case of Mc.Dowell & Company was applicable in the instant case. The revenue contended that the ITAT erred in excluding the income of the 4 BOIs. The revenue's argument was that the ratio of the decision in the case of Mc.Dowell & Company should have been applied. The judgment does not record any specific arguments made by the assessee in response to these questions.

AI-generated summary — verify with the full judgment below

IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

INCOME TAX APPLICATION No.219 of 1999

For Approval and Signature:

HON'BLE MR.JUSTICE D.A.MEHTA and HON'BLE MS.JUSTICE H.N.DEVANI

============================================================ 1. Whether Reporters of Local Papers may be allowed : NO to see the judgements?

To be referred to the Reporter or not? : NO 3. Whether Their Lordships wish to see the fair copy : NO of the judgement?

Whether this case involves a substantial question : NO of law as to the interpretation of the Constitution of India, 1950 of any Order made thereunder?

Whether it is to be circulated to the concerned : NO Magistrate/Magistrates,Judge/Judges,Tribunal/Tribunals?

-------------------------------------------------------------- COMMISSIONER OF INCOME TAX Versus STELLABEN D/O.JIVANLAL KINARIWALA -------------------------------------------------------------- Appearance: 1. INCOME TAX APPLICATION No. 219 of 1999 MR MANISH R BHATT for Applicant No. 1 MRS SWATI SOPARKAR for Respondent No. 1

--------------------------------------------------------------

CORAM : HON'BLE MR.JUSTICE D.A.MEHTA and HON'BLE MS.JUSTICE H.N.DEVANI

Date of decision: 09/12/2004

ORAL JUDGEMENT (Per : HON'BLE MR.JUSTICE D.A.MEHTA)

Heard Mr.M.R.Bhatt, learned Senior Standing

Counsel for the applicant - revenue and Mr.S.N.Soparkar, learned Senior Advocate for the respondent - assessee. In light of the order dated 22-03-2004 made in Review Petition Nos.1682-1737 of 2003 and Civil Appeal Nos.6148-6157 of 1998 and cognate matters by the Apex Court, the following questions of law arise out of the order of the Income Tax Appellate Tribunal. "1. "Whether, the Appellate Tribunal is right in law and on facts in confirming the order passed by the Commissioner of Income-tax (Appeal) directing to exclude the income of 4 BOIs from the income of the assessee ?"

"Whether, the Appellate Tribunal ought not to have appreciated that the ratio of the decision in the case of Mc.Dowell & Company was Applicable in the instant case ?

Accordingly, the Tribunal is directed to draw up the statement of case and raise and refer the questions of law for the opinion of this Court. Rule made absolute. [ D.A.MEHTA,J ] [ H.N.DEVANI,J ]

* * * 'Bhavesh'

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