COMMISSIONER OF IMCOME-TAX vs. MONOSCALCO FRANCO

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ITR/90/1984HC GujaratGJHC24011764198412 November 1998Author: HONOURABLE MR. JUSTICE R.BALIA,HONOURABLE MR. JUSTICE ANIL R. DAVE2 pages
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What did the High Court hold?

The High Court held that the Income Tax Appellate Tribunal was right in law in its decisions concerning both questions. For Question 1, the Tribunal had held that the amount of Rs. 2,10,474, remitted to the assessee from a foreign collaborator, was not includible in the assessee's income. For Question 2, the Tribunal had held that the amount of Rs. 17,998, representing a perquisite for rent-free accommodation, was also not includible as income in the hands of the assessee. The High Court's reasoning was based on its previous decision in the assessee's own case for Assessment Years 1976-77 and 1977-78 (ITR No. 401/83, decided on 24.11.1987), where identical questions were answered in favour of the assessee and against the Revenue. Therefore, the High Court answered both referred questions in the affirmative, meaning in favour of the assessee and against the Revenue. The reference was disposed of accordingly, with no order as to costs.

What were the facts?

The Commissioner of Income-tax (Revenue) has filed an Income Tax Reference before the High Court of Gujarat at Ahmedabad, challenging an order passed by the Income Tax Appellate Tribunal (ITAT), Ahmedabad Bench 'B'. The reference pertains to Assessment Year 1979-80. The ITAT had decided two questions of law in favour of the assessee, Monoscalco Franco. The Revenue is seeking the opinion of the High Court on whether the ITAT was correct in its findings. The procedural history indicates that similar questions for Assessment Years 1976-77 and 1977-78 were decided by the High Court in favour of the assessee.

What were the issues?

The High Court was asked to decide the following two questions of law: 1. Whether the Appellate Tribunal has been right in law holding that the amount of Rs. 2,10,474 is not includible in the hands of the assessee? 2. Whether the Appellate Tribunal was right in law in holding that the amount of Rs. 17,998 being perquisite relating to rent-free accommodation allowed to the assessee is not includible as income in the hands of the assessee? Assessee's Contentions: The judgment does not record specific contentions made by the assessee. However, the fact that the ITAT decided in favour of the assessee implies the assessee argued for the non-inclusion of these amounts. Revenue's Contentions: The judgment does not record specific contentions made by the Revenue. However, the Revenue's act of filing a reference indicates they argued for the inclusion of these amounts in the assessee's income.

AI-generated summary — verify with the full judgment below

IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

INCOME TAX REFERENCE No 90 of 1984

For Approval and Signature:

Hon'ble MR.JUSTICE R.BALIA. and MR.JUSTICE A.R.DAVE ============================================================ 1. Whether Reporters of Local Papers may be allowed to see the judgements?

2.

To be referred to the Reporter or not?

3.

Whether Their Lordships wish to see the fair copy of the judgement?

4.

Whether this case involves a substantial question of law as to the interpretation of the Constitution of India, 1950 of any Order made thereunder?

5.

Whether it is to be circulated to the Civil Judge? 1 to 5: No -------------------------------------------------------------- COMMISSIONER OF IMCOME-TAX Versus MONOSCALCO FRANCO -------------------------------------------------------------- Appearance: MR MIHIR JOSHI for MR RP BHATT for Petitioner NOTICE NOT RECD BACK for Respondent No. 1

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CORAM : MR.JUSTICE R.BALIA. and MR.JUSTICE A.R.DAVE Date of decision: 12/11/98

ORAL JUDGEMENT (per R. Balia, J.)

The Income Tax Appellate Tribunal Ahmedabad Bench 'B' has referred the following two questions of law for the opinion of this court at the instance of Commissioner of Income-tax for Assessment Year 1979-80. "

1.

Whether the Appellate Tribunal has been right in law holding that the amount of Rs. 2,10,474 is not includible in the hands of the assessee?

2.

Whether the Appellate Tribunal was right in law in holding that the amount of Rs. 17998 being perquisite relating to rent free accommodation allowed to the assessee is not includible as income in the hands of the assessee?"

2.

Question No.1 relates to assessee's claim to exemption in respect of amount remitted to him during the assessment year from the foreign collaborator and question No.2 relates to amount paid to the assessee relating to housing during the previous year relevant to assessment year in question. Both the issues have been decided by the Tribunal in favour of the assessee.

3.

It has been brought to our notice that in assessee's own case the very same questions had arisen in respect of Assessment Years 1976-77 and 1977-78 in ITR No. 401/83 which has been decided on 24.11.1987 by answering both the questions in favour of the assessee and against the Revenue.

4.

Accordingly, these two questions referred to us are also answered in affirmative, that is to say, in favour of the assessee and against the revenue. The reference stands disposed of accordingly. There shall be no order as to costs.

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