2016 (2) TMI 573

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....d in the circumstances of the case and in law, the Tribunal was justified in holding that the sum of Rs. 1,20,89,002/- paid to ex partners amounted to diversion of income by overridding title and so was allowable as deduction?" 3. The only issue in this appeal is the exclusion from the income of the firm, the amounts relatable to the retired/deceased partner/s share by diversion on account of overriding title in favour of the expartner/ s or their heirs/ executors by virtue of the partnership deed. 4. We find that the impugned order of the Tribunal has dismissed the Revenue's appeal by inter alia recording the fact that in the order of the Commissioner of Income Tax (Appeals) (CIT(A)) had only followed the consistent view of the T....

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.... under Section 260A of the Act. Moreover, these are the questions of fact which ought to have been raised before the authorities. In fact, it is not even the Assessing Officer's case that the assessee has adopted any colourable device to evade tax either in his order or before the Tribunal. The Assessing Officer confirmed the demand only on the ground that though the issue is decided by this Court, it is still pending in the Apex Court on a question of law. It is not pending on issue of fact viz. adoption of colourable device. In the above view, the additional question of law sought to be raised by the Revenue cannot be raised in the present appeal and hence, is not considered. 7. Inspite of our pointing out to the learned Counsel fo....

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....se circumstances, we would expect the Revenue's Counsel to act with responsibility and not raise issues of fact not raised before the authorities and also not raised even remotely in the appeal memo. In this case, the Tribunal placed reliance upon its earlier orders in respondentassessee's own case rendered by this Court as well as the decision of this Court in Mulla & Mulla & Craigie Blunt & Caroe (supra). Before the Tribunal, the Revenue accepted that it is so and no distinguishing features were brought to the notice of the Tribunal for it to take a different view. However, it is only at the time of the hearing of this appeal, the Counsel for the Revenue claims to have studied papers which none of the authorities have referred to ....