JUDGEMENT

Bhagabati Prosad Banerjee, J. - (1.)This is an application under Section 256(2) of the Income-tax Act, 1961, for referring the following questions of law in respect of the assessment year 1986-87, corresponding to the accounting year 1985-86 :
"1. Whether, on the facts" and in the circumstances of the case, the Income-tax Appellate Tribunal was justified in recalling the order of the Tribunal for fresh hearing ?

(2.)Whether, in view of the elaborate discussion in the Tribunal order (paragraph 12) and when no such claim was made before any of the income-tax authorities, the order of the Tribunal in miscellaneous application recalling the earlier order, is legally correct ?
(3.)Whether, in view of the fact that the Bench which heard the matter giving rise to the miscellaneous application is different from the Bench disposing of the application recalling the order of the Income-tax Appellate Tribunal for fresh hearing, the order of the Tribunal is legally correct in terms of Rule 34A(3) of the Income-tax (Appellate Tribunal} Rules, 1963 ?"
2. The facts of this case, in short, are that the assessee was assessed as an individual and in the assessment, the Assessing officer disallowed the payment of Rs. 9,87,295 by invoking the provisions of Section 40A(3) of the Income-tax Act, 1961.

3. The assessee, being aggrieved by the order of assessment, took the matter in appeal before the Commissioner of Income-tax (Appeals), and the Commissioner of Income-tax had deleted the entire addition of Rs. 9,87,295 made under Section 40A(3) of the said-Act.

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