2007 (8) TMI 334

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....red by M. M. KUMAR J.- This petition filed under section 256(2) of the Income-tax Act, 1961 (for brevity "the Act"), challenges the order dated July 28, 1998, passed by the Income-tax Appellate Tribunal, Delhi Bench (D), New Delhi (for brevity "the Tribunal"), in R. A. No.16/Del/98 dismissing the application filed by the Revenue under section 256(1) of the Act. The Revenue has claimed that the ....

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....ney, learned counsel for the Revenue, at the outset has pointed out that in the case of the same assessee earlier in respect of the assessment year 1984-85, the Tribunal had refused to refer the aforementioned two questions for the opinion of this court. The aforementioned order of the Tribunal was challenged and accordingly this court while allowing I. T. C. No. 40 of 1997 directed the Tribunal e....

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.......it is sufficient to mention that the Commissioner of Income-tax (Appeals) as well as the Tribunal have treated the provisions of the amended section 80HHC of the Act applicable to the case of the assessee as if the amendment made by the Finance (No. 2) Act of 1991 was retrospective. This has to be treated as legally unsustainable in view of the law laid down by the Supreme Court in Gem Granites....

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.... Act of 1991 could not have been extended to the assessee in relation to the assessment year 1984-85. The position would not be different with respect to the assessment year 1988-89 which is the year under consideration in the instant case. 6. We would have allowed the instant petition filed by the Revenue and issued directions to the Tribunal to draw up a statement of case and refer the aforem....