Commissioner of Income Tax vs Dinesh Kumar

This is an application made by the Revenue (Commissioner of income tax) u/s 256(2) of the Income Tax Act, 1961, consequent upon the dismissal of their application made u/s 256(1) of the Act dated January 19, 1999, in R.A. No. 179/Ind/98 which in turn arose out of an order passed by the Income Tax Appellate Tribunal in an appeal decided on August 27, 1998, being I.T.A. No. (SS)60/Ind/96.

The following two questions are proposed by the Revenue for being referred to this Court u/s 256(2) of the Income Tax Act:

(1) Whether, on the facts and in the circumstances of the case and in law, the Tribunal''s finding that cash of Rs. 14,00,000 found from the assessee stood explained is perverse and hence not justified?

(2) Whether, on the facts and in the circumstances of the case, the Tribunal was justified in holding that if the assessee has maintained regular books of account for a particular assessment year, which were seized during the course of search and the assessee filed belated return of income u/s 139(4) of the Act for such assessment year after the date of search on the basis of the books of account then income of such assessment year cannot be treated as income from undisclosed income in spite of the specific provisions of Section 158BB(1)(c) of the Income Tax Act?

Heard Shri R.L. Jain, learned senior counsel with Miss Vina Mahadik for the Revenue and Shri G.M. Chaphekar, learned senior counsel with Shri R.K. Sarda for the assessee.

At the outset, learned Counsel for the assessee has brought to our notice that a decision rendered by this Court on January 30, 1999, in ITR No. 5 of 1999 and another decision rendered in I.T.A. No. 134 of 1999 decided on February 10, 2000. According to learned counsel, both these decisions arose out of the common order pertaining to the wife and son of the present assessee who were subjected to raid provisions u/s 132 of the Act. It was brought to our notice that these very questions are proposed at the instance of the two assessees arising out of the same case and this Court dismissed the applications made by the Revenue holding therein that the questions proposed are questions of fact and hence do not arise. In other words, the view taken by the Income Tax Appellate Tribunal dismissing the application made u/s 256 of the Act was upheld.

In our opinion, since this Court has already dismissed the two applications made by the Revenue praying for the same questions to be referred to this court, we are bound by the two orders passed by this Court referred supra. It is for the reason that once this Court comes to the conclusion that these two questions proposed being the questions of fact, then we cannot take a view contrary to the view already expressed by this Court in these very cases. It is not in dispute that the Revenue did not challenge the aforementioned two orders by filing any appeal in the Supreme Court of India, therefore, the aforementioned two orders have become final so far as these two questions are concerned.

Accordingly and in view of the aforesaid discussion and in the light of the two decisions to this court, we also dismiss this application made by the Revenue in order to maintain judicial consistency arising between the same parties and the same case.

Accordingly and in view of the aforesaid discussion, application fails and is hereby dismissed.