High Court Of Madhya Pradesh : Indore Bench
CIT vs. Dinesh Kumar
Section 256(2)
Block period 1986-87 to 20th Nov., 1995
A.M. Sapre & Ashok Kumar Tiwari, JJ.
IT Ref. No. 78 of 1998
11th January, 2005
Counsel Appeared :
R.L. Jain with Miss Vina Mahadik, for the Revenue : G.M. Chaphekar with R.K. Sarda, for the Assessee
ORDER
By the court :
This is an application made by the Revenue (CIT) under s. 256(2) of the IT Act consequent upon the dismissal of their application made under s. 256(1) of the Act, dt. 19th Jan., 1999 in RA No. 179/Ind/1998 which in turn arises out of an order passed by the Tribunal in an appeal decided on 27th Aug., 1998 being ITA No. (SS) 60/Ind/1996.
2. The following two questions are proposed by the Revenue for being referred to this Court under s. 256(1) of the IT 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, 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 assessee filed belated return of income under 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 sources in spite of specific provisions of s. 158BB(1)(c) of the IT Act?
Heard Shri R.L. Jain, learned senior counsel with Miss Vina Mahadik for 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 30th Jan., 1999 in IT Ref. No. 5 of 1999 and another decision rendered in IT Appeal No. 134 of 1999 decided on 10th Feb., 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 under s. 132 of the Act. It was brought to our notice that these very questions were proposed at the instance of two assessees arising out of the same case and this Court dismissed the application made by the Revenue holding therein that the questions proposed are the questions of fact and hence do not arise. In other words, the view taken by the Tribunal dismissing the application made under 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 became final so far these two questions are concerned. Accordingly and in view of the aforesaid discussion and in the light of the two decisions of this Court, we also dismiss this application made by the Revenue in order to maintain judicial consistency arising between the same parties and same case. Accordingly and in view of the aforesaid discussion, application fails and is hereby dismissed.
[Citation : 299 ITR 51]
