2000 (12) TMI 12

X X   X X   Extracts   X X   X X

Full Text of the Document

X X   X X   Extracts   X X   X X

....an opportunity of hearing to both the assessee as well as the Assessing Officer and to pass a fresh order. We have heard learned counsel for the appellant, Ms. Sindhu Sharma, who submits that the Tribunal was not justified in remanding the matter to the Commissioner of Income-tax (Appeals) because it was obligatory on its part to consider the relevant facts and decide the proper gross profit rate itself. She submits that the question whether the Tribunal should have decided the matter instead of remanding the matter to the Commissioner (Appeals) is itself a question of law which should be examined by this court in an appeal under section 260A of the Act. In support of the contention reliance is placed on the decision of the Supreme Court....

X X   X X   Extracts   X X   X X

Full Text of the Document

X X   X X   Extracts   X X   X X

....on 260A mandates that the appeal should be filed in the form of a memorandum of appeal precisely stating therein "the substantial question of law involved". Sub-section (3) requires the High Court to formulate the substantial question of law, if it is satisfied that such a question is involved in the case. Even after an appeal is admitted and a substantial question of law formulated by the High Court, it is still open to the respondent to contend at the time of hearing that the case does not involve any such question. Thus the very foundation of an appeal under section 260A of the Act is that the case involves a substantial question of law. The jurisdiction of the High Court under this section is confined to entertaining only such appeals a....

X X   X X   Extracts   X X   X X

Full Text of the Document

X X   X X   Extracts   X X   X X

....tially affects the rights of the parties and if so, whether it is either an open question in the sense that it is not finally settled by this court or by the Privy Council or by the Federal Court or is not free from difficulty or calls for discussion of alternative views. If the question is settled by the highest court or the general principles to be applied in determining the question are well settled and there is a mere question of applying those principles or that the plea raised is palpably absurd the question would not be a substantial question of law." Applying the above test to the facts of the case before it, the Supreme Court held that the construction of the managing agency agreement was not only a question of law but was also ....