Back
1996 Supreme(MP) 205
A.R. Tiwari, N Jain J.
Smt. Rekha Devi (Legal ...
vs
Commissioner Of Income-Tax
DECIDED ON : 14 February, 1996
A reference under Section 256(2) of the Income-tax Act, 1961 can be sought only on any question of law arising out of the order in question.
Headnote:
INCOME TAX - Section 64(1)(iv) - Applicability - Tribunal's observation that the question of application of Section 64 of the Act in the hands of the assessee is to be examined - Does not amount to a holding that the provisions are applicable - Proposed question does not arise from the order of the Tribunal - Reference not maintainable.
Fact of the Case:
The assessee filed applications under Section 256(2) of the Income-tax Act, 1961, seeking direction to the Income-tax Appellate Tribunal to state the cases and refer the proposed common question of law as to whether the Tribunal was justified in holding that the provisions of Section 64(1)(iv) of the Act are applicable.
Finding of the Court:
The Tribunal did not specifically hold that the provisions of Section 64(1)(iv) are applicable. The observations only mean or could mean that the aforesaid question was left to be examined by the concerned authority.
Issues: Whether the proposed question, not arising from the order of the Tribunal, is properly presented.
Ratio Decidendi: The reference can be sought only on any question of law arising out of the order in question. As the applicability or otherwise of the aforesaid provisions is yet not decided, the aforesaid question cannot be said to arise out of the order passed by the Tribunal.
Final Decision: The applications are dismissed leaving the applicant free to raise the aforesaid question before the appropriate forum, if so advised, as and when the occasion arose in that regard and on adverse decision to pursue further remedy as may be available under the law.
A.R. Tiwari, J.
1. The applicant/assessee has filed applications under Section 256(2) of the Income-tax Act, 1961 (for short, "the Act"), registered as miscellaneous civil cases particularised above, seeking direction to the Income-tax Appellate Tribunal to state the cases and refer the proposed common question of law, as extracted below, for opinion of this court :
" Whether, on the facts and in the circumstances of the case, the Income-tax Appellate Tribunal was justified in holding that the provisions of Section 64(1)(iv) of the Act are applicable and thereby directing the Income-tax Officer to base his fresh assessment on the assessment year 1973-74 when Smt. Rekha Devi (wife) has been held to be the owner of the house property in question ?"
2. Briefly stated, the facts of the case are that the assessee, Kishanchand Gaganmal, was a liquor contractor. He expired. The applicant, Smt. Rekha Devi, his wife, is the legal representative of the late Shri Kishanchand. The assessment years are 1973-74, 1974-75, 1975-76, 1977-78, 1978-79 and 1981-82. The Tribunal in I. T. A. No. 297/(Ind) of 1983 and I. T. A. No. 377(Ind) of 1983 (for the assessment year 1973-74), I. T. A. No. 605/(Ind) of 1983 and C. O. No. 89/(Ind) of 1983 (for the assessment year 1974-75), I. T. A. No. 733/(Ind) of 1983 (for the assessment year 1975-76), I. T. A. No. 163/ (Ind) of 1984 (for the assessment year 1977-78), I. T. A. No. 1221/(Ind) of 1984 (for the assessment year 1978-79), I. T. A. No. 1222/(Ind) of 1984 and C. O. No. 1/(Ind) of 1985 (for the assessment year 1981-82), I. T. A. Nos. 270/ (Ind) of 1983 and 308/(Ind) of 1983 (for the assessment year 1973-74) and I. T. A. No. 154/(Ind) of 1984 (for the assessment year 1977-78) passed the orders on December 10, 1986, with three observations, covered under (a) to (c) vide paragraph 15 directing the Income-tax Officer to make fresh assessments in accordance with law after taking into consideration the observations. One of the three observations, as is relevant for the purposes of the disposal of these miscellaneous civil cases, is "question of application of Section 64 of the Act in the hands of Kischanchand is also to be examined". The applications numbered 46/(Ind) of 1987, 47/(Ind) of 1987, 48/{Ind) of 1987, 49/(Ind) of 1987, 50/(Ind) of 1987, 51/(Ind) of 1987, 52/ (Ind) of 1987 and 53/(Ind) of 1987 were filed under Section 256(1) of the Act which were rejected by the Tribunal. The applicant has, therefore, filed these miscellaneous civil cases under Section 256(2) of the Act for the direction, as noted above.
3. We have heard Shri S. C. Bagdiya, learned counsel for the applicant/ assessee, and Shri D. D, Vyas, learned counsel for the non-applicant/Department in all these cases.
4. The principal question in these cases before the Tribunal was as to who is the real owner of house No. 32, Old Sindhi Colony, Indore. The Tribunal found that Smt. Rekha Devi (applicant) is to be treated as owner of this house. The Tribunal also concluded that Shri Kishanchand (husband of Smt. Rekha Devi) invested a sum of Rs. 85,500 in the purchase of the house and thus held that the question of investment was required to be re-examined with reference to the material seized at the time of raid and also with reference to the past or current savings, if any. In this context, the Tribunal also observed that the question of application of Section 64 of the Act in the hands of Kishanchand was also to be examined. On this basis, the applicant proposed the aforesaid question.
5. Section 64 is captioned as "Income of individual to include income of spouse, minor child, etc." Its Sub-section (1)(iv) provides as under :
" (iv) subject to the provisions of Clause (i) of Section 27, to the spouse of such individual from assets transferred directly or indirectly to the spouse by such individual otherwise than for adequate consideration or in connection with an agreement to live apart;"
6. As noted above .the question formulated in these c
