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SUPREME COURT OF INDIA
Commissioner of Income Tax,Gujarat
VERSU
PHARMASIA Private Limited
Decided On : November 16, 2000
Reference - Capital Gain - The High Court declined to call for a reference of the question proposed by the Revenue regarding the surplus realized on the sale of shares being exempt under section 47 (iv) of the Act, as it was covered by its previous decision. The Court allowed the appeal, set aside the order, and directed the Tribunal to refer the question to the High Court for consideration.
Fact of the Case:
The High Court declined to call for a reference of the question proposed by the Revenue, which raised mixed issues of fact and law regarding the surplus realized on the sale of shares being exempt under section 47 (iv) of the Act.
Finding of the Court:
The appeal was allowed, the order under challenge was set aside, and the Tribunal was directed to refer the question to the High Court for its consideration after drawing up a Statement of Case.
Issues: The main issue was whether the question raised by the Revenue regarding the exemption of surplus realized on the sale of shares under section 47 (iv) of the Act should be referred to the High Court for consideration.
Ratio Decidendi: The Court found that the question raised mixed issues of fact and law and should be considered by the High Court, leading to the decision to allow the appeal and set aside the order.
Final Decision: The appeal was allowed, the order under challenge was set aside, and the Tribunal was directed to refer the question to the High Court for its consideration after drawing up a Statement of Case.
Judgment
S. P. BHARUCHA, J.
( 1 ) THE High Court declined to call for a reference of the following question proposed by the Revenue :"whether the Appellate tribunal is right in law and on facts in holding that the surplus realised on sale of shares is a capita] gain exempt under section 47 (iv) of the Act. "it did so because the question was covered by its decision in the case of Commissioner of income Tax v. M/s. Sercon Pvt. Ltd. It appears from the record that the Revenue had approached this Court in a special leave petition against the decision of the High Court in the case of M/s. Sercon Pvt. Ltd. but that special leave petition was dismissed on the ground that no statement of Case had been filed. It is clear that the question raises mixed issues of fact and law and that, therefore, it should be considered by the high Court.
( 2 ) ). The appeal is accordingly allowed. The order under challenged is set aside. The Tribunal shall refer the question quoted above to the High Court for its consideration after drawing up a Statement of Case.
( 3 ) ). No order as to costs.
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