COMMISSIONER OF INCOME TAX Vs. D SHANKARAIAH

JUDGEMENT

(1.) THESE appeals are directed against the judgment of the Andhra Pradesh High Court in CR No. 4 of 1979 in which the High Court relied upon an earlier judgment of its own in RC No. 11 of 1981 dated 13-4-1983 and answered the reference in the affirmative in favour of the assessee. When these petitions by special leave were filed, it was stated expressly in paragraph 7 that a special leave petition was already pending before this Court against the order of the High Court in RC No. 11 of 1981 dated 13-4-1983 which was the assessee's own case. On that basis when this Court granted leave in these cases, it directed the learned counsel to furnish the number of the other special leave petition within eight weeks from that date i.e. 10-5-1991 and directed that the appeals should be listed along with the said special leave petitions. The number was not furnished. The appeals were again placed before this Court on 13-10-1997. This Court adjourned these matters for six weeks in order to enable the counsel to comply with the direction given at the time of admission on 10-5-1991. Again the number was not furnished for the third time, when the matters were placed before this Court on 7-1-1999, final opportunity was given to the appellant to furnish the said number and the matters were adjourned for four weeks for that purpose but till now nothing has been done.

(2.) LEARNED Senior Counsel represents that the appellant is not in a position to get the relevant records and furnish the number of the other case. In the circumstances he proceeds to argue these matters on the point of law that was raised before the Tribunal and the High Court. The only question which arose for consideration was whether the sales tax collected by the assessee, who was a commission agent, from the purchasers and paid to the Sales Tax Department as well as the amount of refund of sales tax collected by the said assessee from the Department when it was found that sales tax was not payable, could be treated as income in the hands of the assessee and the same is liable for payment of income tax. The Tribunal distinguished the judgment of this Court cited before it, namely, Chowringhee Sales Bureau (P) Ltd. v. CIT (1973 (1) SCC 46 : 1973 SCC (Tax) 163 : 1973 (87) ITR 542) and applying the principle laid down in Kedarnath Jute Mfg. Co. Ltd. v. CIT (1972 (3) SCC 252 : 1971 (82) ITR 363) held that the assessee was not liable to pay tax for such amounts.

(3.) THE High Court answered the reference in favour of the assessee by following its own judgment in the case of the assessee in RC No. 11 of 1981 dated 13-4-1983.