1965 (9) TMI 2

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....dian Income-tax Act for sharing the managing agency commission in the proportion of 7 to 1. During the assessment proceedings it claimed that it was liable to be assessed only on 7/8th of the income received as the managing agency commission from each of the two companies, the remaining 1/8th income being liable to be assessed in the hands of the third parties but it filed no declaration of this fact (and consequently the question of its producing sufficient evidence to prove the facts contained in the declaration did not arise). The Income-tax Officer assessed it on the whole of the managing agency commission. On appeal, the Appellate Assistant Commissioner held that though the assessee was not entitled to the benefit of section 12-A (on a....

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....it relied upon Jhajharia Brothers Ltd. v. Commissioner of Income-tax. In other words, the Tribunal held that if by fulfilling the condition mentioned in section 12-A the assessee could get the benefit of its provision, it was not entitled to claim the benefit of section 10(2)(xv) if otherwise it would be entitled to it. So it set aside the order of the Appellate Assistant Commissioner and restored that of the Income-tax Officer. Subsequently an application was made by the assessee under section 35 for rectification of the order; it contended that the Tribunal had not dealt in its order with its contention that it had not been given adequate opportunity by the Income-tax Officer to fulfil the condition mentioned in section 12-A. The Tribunal....

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....d to do so on the ground that the assessee was not entitled to the benefit of that provision, it being entitled solely to the benefit of section 12-A. We must, therefore, refuse to answer the question. It was suggested by Sri Brijlal Gupta that we should reframe the question; we cannot reframe the question in order to substitute quite a different question. The jurisdiction to reframe a question referred by the Tribunal is distinct from the jurisdiction conferred by section 66(2) to call for a question refused to be stated by the Tribunal and the High Court cannot exercise the former jurisdiction in order to achieve the object of the latter. If a Tribunal refers one question and refuse, to refer another question, it is not open to the High C....