Gujarat High Court
Saurashtra Packaging Pvt. Ltd. vs Commissioner Of Income Tax on 21 June, 1993
Equivalent citations: [1993]204ITR443(GUJ)
JUDGMENT G.T. Nanavati, J.
1. This application is filed by Saurashtra Packaging Pvt. Ltd., the assessee, under s. 256(2) of the IT Act, 1961.
2. The assessee company was one of the partners of the firm of M/s Saurashtra Packaging Services which was dissolved on 1st April, 1983. The business of the said partnership firm was taken over by the assessee as a going concern w. e. f. 1st April, 1983. In the accounting year relevant to the asst. yr. 1984-85, the assessee firm received sales-tax refund of Rs. 33,968. The assessee contended before the ITO that the said refund was not includible as income under s. 41(1) of the Act as deduction in respect of the said amount had been obtained by the partnership firm and not by the assessee. The assessee also submitted that the said amount cannot be treated as income by virtue of any other provisions of the Act including ss. 28, 170 and 176(3A). 3. The ITO was of the view that it was a case of succession of business otherwise than on death and as such sales-tax refund amount can be treated as income of the assessee. He, therefore, included the said refund amount in the income of the assessee and assessed it accordingly. In the appeal filed by the assessee, the CIT(A) held that as no deduction was allowed to the assessee in the earlier years and that deduction was allowed to the partnership firm, s. 41(1) was not applicable. He also held that neither under s. 28 nor under s. 170 nor under s. 176(3A), the amount of sales-tax refund can be treated as income of the assessee. He, therefore, allowed the appeals and directed that addition be deleted. The Department, therefore, preferred appeal to the Tribunal. Before the Tribunal, it was contended on behalf of the Department that the amount received as sales-tax refund should be regarded as incident of business and as such, the said amount must be considered as income of the assessee. On behalf of the assessee, the order of the CIT(A) was supported on the same grounds which were urged by the assessee before the CIT(A). The Tribunal found it difficult to decide the point in controversy finally by observing as under :
"This is because it is not clear from record as to under what provisions of Gujarat Sales-tax Act, the sales-tax refund had been received by the assessee when the payment had been made by the erstwhile firm. During the course of argument, we had enquired whether the same sales-tax registration number had continued after the assessee company took over the running business of the erstwhile firm. Information on this point was not readily available. This would be a material fact for finally deciding the point in controversy. It will have to be ascertained as to on what basis the assessee-company received the refund if really it was the erstwhile firm which was entitled to receive the refund. If the firm stands dissolved, it would be the partners of the dissolved firm who would normally receive the refunds. The deed of dissolution is also not on record and it is not known whether there were any terms in the deed of dissolution under which the sales-tax amount was receivable by the assessee company. It will be necessary to examine the relevant provisions of the Gujarat Sales-tax Act and Gujarat Sales-tax Rules regarding the question as to who would be entitled to refund in case of dissolution of firms followed by succession. All these enquiry would be necessary for deciding the point in controversy finally".
4. Aggrieved by this view and the course adopted by the Tribunal, the assessee has filed this application.
5. It was submitted on behalf of the assessee that the Tribunal could have easily looked into the provisions of Gujarat Sales-tax Act and the Gujarat Sales-tax Rules, to find out under which provisions of the Act and the Rules, the said refund was granted. It was also submitted that deed of dissolution was already on record and it was wrong to say that "the deed of dissolution is also not on record and it is not known whether there were any terms in the deed of dissolution under which the sales-tax amount was receivable by the assessee company". The learned counsel for the assessee drew our attention to the letter written by the assessee to the ITO wherein it is clearly stated that a copy of the dissolution deed was already submitted by the assessee earlier. It is not in dispute that the said letter was on the record of the case. It was also submitted that as necessary material was already on record and considering the same in the light of the provisions of the Gujarat Sales-tax Act and the Gujarat Sales-tax Rules, the Tribunal could have finally decided the appeals and it was, therefore, not necessary at all to send the matter back to the CIT(A). It was also urged that if any information was required by the Tribunal, it could have obtained the same by directing the parties to produce the same before it and for that reason also, it was not necessary to set aside the order passed by the CIT(A) and to send the matter back to him.
6. In our opinion, the contentions raised on behalf of the assessee deserve to be accepted. Though reliance was placed by the assessee on the dissolution deed before the ITO for a different purpose, the fact remains that a copy of the dissolution deed was on the record of the case. As pointed out by the learned advocate for the assessee, the said dissolution deed has provided for rights and liabilities of the assessee which took over the running business of the partnership firm. In view of this material, the Tribunal could have easily looked into the relevant provisions of the Gujarat Sales-tax Act and the Gujarat Sales-tax Rules if that was found necessary and decided the appeals. Thus, there was no justification for setting aside the orders passed by the CIT(A) and sending the matters back to him for a fresh decision. The Tribunal, therefore, can be said to have erred in holding that it was unable to decide the point in controversy finally in the absence of relevant material. In order to save time and avoid multiplicity of proceedings, we are of the opinion that instead of directing the Tribunal to state the case and refer to this Court the questions raised by the assessee, the Tribunal be directed to consider the dissolution deed itself and dispose of the matter finally. It would be open to the parties to produce whatever material they deem fit and necessary for the purpose of deciding the point in issue. This application is disposed of accordingly. No order as to costs.