COMMISSIONER OF INCOME TAX v. DR. (MRS) KAMLESH MADAN - 1987-LL-0731-4

Citation	1987-LL-0731-4
Appellant Name	COMMISSIONER OF INCOME TAX
Respondent Name	DR. (MRS) KAMLESH MADAN
Court	ITAT
Relevant Act	Income-tax
Date of Order	31/07/1987
Assessment Year	1979-80
Judgment	View Judgment
Keyword Tags	reference application • unabsorbed loss
Bot Summary:	29th May, 1986 for opinion of the Hon'ble High Court under s. 256(1) of the IT Act: Whether, on the facts and in the circumstances of the case, the Tribunal was right in law in allowing the set off of loss suffered by the assessee's wife in the firm in which the assessee and his wife were partners, against the income of the assessee under s. 64(1)(i) though Expln. 2 to s. 64 was inserted in the IT Act, 1961 w.e.f. 1st April, 1980 Similar question is already pending in the High Court in relation to the assessee's own case for the earlier year and we had also prepared a draft statement of the case dt. The dispute related to assessee's claim for unabsorbed loss allocated in the hands of the husband of the assessee in a firm in which he was a partner. The claim was not allowed in the hands of the assessee on the ground that she was not partner in that firm. On appeal, the AAC accepted the claim of the assessee and reversed the finding of the ITO. The second appeal by the Department was dismissed by the Tribunal relying upon the earlier decision in ITA No. 611/Chd/ 80 decided on 17th Sept., 1982. Notwithstanding this Explanation, we had decided to refer this question as the year in dispute is 1979-80 but now the representative of the assessee has brought to out notice a decision of the Hon'ble Supreme Court of India in CIT, Bangalore vs. J.K. Gotla reported in 48 CTR 363: 156 ITR 323 wherein exactly similar question has been decided by their Lordships of the Supreme Court in favour of the assessee. Since now there is a Supreme Court authority which is conclusive on the subject, we think that no useful purpose would be served by referring this question which has become purely academic in view of the Supreme Court authority above-referred to.

By this application presented on 4th Sept., 1986, CIT requires Tribunal to state case and refer following question which is said to arise out of its order dt. 29th May, 1986 for opinion of Hon'ble High Court under s. 256(1) of IT Act: "Whether, on facts and in circumstances of case, Tribunal was right in law in allowing set off of loss suffered by assessee's wife in firm in which assessee and his wife were partners, against income of assessee under s. 64(1)(i) though Expln. 2 to s. 64 was inserted in IT Act, 1961 w.e.f. 1st April, 1980?" Similar question is already pending in High Court in relation to assessee's own case for earlier year and we had also prepared draft statement of case dt. 3rd April, 1987 for submission to Hon'ble High Court. However after carefully considering all facts and circumstances of case, we are of opinion that no reference in matter is called for. dispute related to assessee's claim for unabsorbed loss allocated in hands of husband of assessee in firm in which he was partner. claim was not allowed in hands of assessee on ground that she was not partner in that firm. On appeal, AAC accepted claim of assessee and reversed finding of ITO. second appeal by Department was dismissed by Tribunal relying upon earlier decision in ITA No. 611/Chd/ 80 decided on 17th Sept., 1982. Department was moved this reference application. Two points were urged by Shri D.K. Gupta ld. counsel for assessee. One was that w.e.f. 1st April, 1980 legislature has introduced Expln. 2 to s. 64 and because of that question need not be referred. Notwithstanding this Explanation, we had decided to refer this question as year in dispute is 1979-80 but now representative of assessee has brought to out notice decision of Hon'ble Supreme Court of India in CIT, Bangalore vs. J.K. Gotla reported in (1985) 48 CTR (SC) 363: (1985) 156 ITR 323 (SC) wherein exactly similar question has been decided by their Lordships of Supreme Court in favour of assessee. Since now there is Supreme Court authority which is conclusive on subject, we think that no useful purpose would be served by referring this question which has become purely academic in view of Supreme Court authority above-referred to. In result, reference application is dismissed. *** COMMISSIONER OF INCOME TAX v. DR. (MRS) KAMLESH MADAN

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