COMMISSIONER OF INCOME TAX vs. APPOLO VIKAS STEEL PVT.LTD.

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ITA/174/1998HC GujaratGJHC24024212199810 August 1998Author: HONOURABLE MR. JUSTICE C.K.THAKKER,HONOURABLE MR. JUSTICE M.C.PATEL2 pages
AI SummaryRemanded

What did the High Court hold?

The High Court held that on the facts and in the circumstances of the case, and in view of the fact that an application for reference on the quantum of tax was granted and a reference was pending, a question of law did arise from the decision of the Tribunal for the opinion of the High Court. Consequently, the Tribunal was directed to furnish a statement of case in respect of the aforesaid question under Section 256(2) of the Income-tax Act, 1961, expeditiously. The Rule was made absolute. The specific finding on the deletion of additional tax under Section 104 was not elaborated upon, as the judgment focused on the direction to the Tribunal to state a case.

What were the facts?

This case involves an application filed by the Commissioner of Income Tax (Revenue) under Section 256(2) of the Income Tax Act, 1961. The Revenue sought a direction to the Income Tax Appellate Tribunal (ITAT), Ahmedabad Bench, to state a case and refer a question of law to the High Court. The ITAT had refused to make such a reference. The assessee is Apollo Vikas Steel Pvt. Ltd. The dispute pertains to the deletion of additional tax levied under Section 104 of the Act by the ITAT. The Revenue contended that the ITAT's decision on the quantum of tax was a subject matter for reference, and their application for reference was initially allowed by the ITAT.

What were the issues?

1. Whether the Appellate Tribunal is right in law and on facts in deleting the additional tax levied under Section 104 of the Act? (Question of law and fact, concerning Section 104 of the Income Tax Act, 1961). Assessee's contention: The Revenue argued that the ITAT's decision on the quantum of tax is a subject matter of reference and that their application to refer the question for the opinion of the High Court was allowed by the Tribunal. The assessee contended that an order under Section 104 of the Act cannot be considered consequential in nature, and thus the Tribunal, by rejecting the application, committed no error of law. Revenue's contention: The Revenue argued that the ITAT's decision on the quantum of tax is subject matter of reference and that their application to refer the question for the opinion of the High Court was allowed by the Tribunal.

Which sections of the Income-tax Act were involved?

Section 256,Section 104

AI-generated summary — verify with the full judgment below

IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

INCOME TAX APPLICATION No 174 of 1998

For Approval and Signature:

Hon'ble MR.JUSTICE C.K.THAKKER and MR.JUSTICE M.C.PATEL ============================================================ 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?

-------------------------------------------------------------- COMMISSIONER OF INCOME TAX Versus APPOLO VIKAS STEEL PVT.LTD. -------------------------------------------------------------- Appearance: MR MANISH R BHATT for Petitioner MR. R.K.PATEL WITH MR. B.D.KARIA FOR THE RESPONDENT.

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

CORAM : MR.JUSTICE C.K.THAKKER and MR.JUSTICE M.C.PATEL Date of decision: 10/08/98

ORAL JUDGEMENT (per C.K.THAKKER J.)

We have heard Mr.B.B.Naik instructed by Mr.Manish Bhatt, for the Revenue and Mr.B.D.Karia, learned counsel for the Assessee.

This application is filed under sub-section (2)

of Section 256 of the Income Tax Act, 1961, directing the Income Tax Tribunal, Ahmedabad Bench to make reference on the following question:

Whether the Appellate Tribunal is right in law and on facts in deleting the additional tax levied under Section 104 of the Act ?

The Tribunal refused to make a reference. It is contended by Mr.B.B.Naik on behalf of the Revenue, that the decision of the Income Tax Appellate Tribunal on quantum of tax is subject matter of reference and application to refer the question for the opinion of this court was allowed by the Tribunal. It was, no doubt, contended by Mr.Karia that an order under Sec.104 of the Act cannot be said to be consequential in nature and the Tribunal by rejecting the application, has not committed any error of llaw.

In our opinion, however, on the facts and in the circumstances of the case and in view of the fact that on the quantum an application is granted and reference is pending, the question of law arises for from the decision of the tribunal for the opinion of this court as referred to above.

The Tribunal is directed to furnish statement of case in respect of the aforesaid questions under Section 256(2) of the Income-tax Act, 1961, expeditiously. Rule is made absolute accordingly with no order as to costs.

Dt. 10.8.1998. (C.K.THAKKER J.)

(M.C.PATEL J.)

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