- (1.) These two appeals have been filed by the revenue, against the order of the learned Tribunal dated 23-5-2002, deciding two appeals of the assessee, relating to the assessment years 1991-92 and 1993-94.
(2.) The Appeal No. 16 was admitted vide Order dated 21-3-2003, by framing the following substantial question of law: Whether in the facts and circumstances of the case the Tribunal was right in holding that refund of excise duty received during the previous year relevant to assessment year 1991-92 is not liable; to be included for computing taxable income under Section 41(1) because the appeal against the order as a result of which refund has arisen was pending before the appellate authority And the Appeal No. 24 was admitted on 27-2-2003, without framing any substantial question of law. However, thereafter, vide order dated 14-11-2005 following substantial question of law was framed: Whether on the facts and in the circumstances of the Gase the Tribunal is right in law in holding that excise duty refund is not exigible to tax under Section 41(1) of the Act in view of the law laiddown by the Hon'ble the Supreme Court in case of Polyflex (India) (P) Ltd. v. CIT, 2002 257 ITR 343(SC)
(3.) As appears from the judgment of the learned Tribunal, that the learned Tribunal has decided the appeal in view of the earlier orders of the learned Tribunal itself, in the assessee's awn case for other assessment years, wherein the excise duty refund credited to the profit and loss account was held to be not exigible to tax under Section 41(1). Obviously, it appears, that when the Appeal No. 16 was admitted, this Court had framed it as a moot question to be involved in the present case, however, after admission of the other Appeal No. 24, when the substantial question was framed therein on 14-11-2005, the frame of the question was entirely different, comprehending the correctness of the finding of the Tribunal, on the anvil of the judgment of Hon'ble the Supreme Court, in Politflex (India) (P) Ltd. v. CIT, 2002 257 ITR 343(SC) .;