Andhra Pradesh H.C : Whether, on the facts and in the circumstances of the case, the Tribunal is correct in law in cancelling the reassessment made including the share income of the spouse who was a partner in the same firm under s. 64(1)(i) of the IT Act, 1961, for the asst. yr. 1980-81 ?

Counsel Appeared

M. Suryanarayana Murthy, for the Revenue

Y.V. ANJANEYULU, J.:

The following three questions are referred for consideration of this Court at the instance of the CIT, Visakhapatnam :

” 1. Whether, on the facts and in the circumstances of the case, the Tribunal is correct in law in cancelling the reassessment made including the share income of the spouse who was a partner in the same firm under s. 64(1)(i) of the IT Act, 1961, for the asst. yr. 1980-81 ?

Whether, on the facts and in the circumstances of the case, the Tribunal is correct in law in holding that the provisions of s. 64(1)(i) are not applicable as the assessee was a partner in the firm in the capacity of the Karta of an HUF and not in his individual capacity ?

Whether, on the facts and in the circumstances of the case, the Tribunal is justified in holding that though the assessee is a partner in the firm in the capacity of the Karta of an HUF, his capacity qua other partners is not individual and as such the provisions of s. 64(1)(i) are not applicable ? “

In the statement of facts drawn up by the Tribunal, it was observed that the point arising for consideration in this case was covered by a decision of this Court in the case of CIT vs. Sanka Sankaraiah 1978 CTR (AP) 24 : (1978) 113 ITR 313. For that reason, the Departmental appeal was dismissed. The application filed under s. 256(1) of the Act by the CIT was accepted on the ground that in a Punjab and Haryana High Court case, where the decision of this Court in Sanka Sankaraiah (1978) 113 ITR 313 was followed, the Supreme Court had granted special leave to the Department. In the first place, there was no indication that the decision of this Court in Sanka Sankaraiah (1978) 113 ITR 313 was challenged in the Supreme Court by the CIT.

During the past six weeks, we had come across a number of references made by the Tribunal which were covered by the decisions of this Court. Most of these references were filed by the Department. All that this Court had to do once again was to refer to the earlier judgments and answer the references against the Revenue. We feel that no useful purpose will be served by the Tribunal granting references to parties in respect of matters which are covered by the decisions of this Court,unless irrefutable evidence is placed before the Court by the parties that an appeal against the decision of this Court is pending in the Supreme Court. In cases where the Tribunal is satisfied that the decision of this Court is the subject-matter of an appeal in the Supreme Court, it should indicate in the statement of the case, the Civil Appeal Number in the Supreme Court and then grant a reference. Quite often it happens that the parties file applications for leave to appeal to the Supreme Court which is either pending in this Court or rejected. In the event of rejection, the parties may take steps to file a petition for grant of special leave in the Supreme Court. In all such cases, the Tribunal should not grant a reference to this Court merely because the parties have filed applications for leave to appeal. It is only in cases where the parties satisfy the Tribunal that either this Court granted leave to appeal to the Supreme Court against its judgment or the Supreme Court granted special leave to appeal against the judgment of this Court that a reference may be granted by the Tribunal. In all other cases, the Tribunal should refuse to grant a reference to this Court, as the matter is fully covered by an earlier decision of this Court and no purpose would be served by granting a reference once again to decide the same question of law. We may, in this connection, draw the attention of the Tribunal to s. 158A of the Act.

4. As far as the present case is concerned, the questions referred for consideration, being covered by the decision of this Court in Sanka Sankaraiah (1978) 113 ITR 313, the questions are answered in favour of the assessee and against the Revenue.

No costs.

[Citation : 173 ITR 148]