COMMISSIONER OF INCOME TAX V SETH KEDAR NATH MODI Vs. COMMISSIONER OF INCOME TAX V SETH KEDAR NATH MODI

JUDGEMENT

(1.) THE questions of law raised in all these income tax references are common. For the sake of convenience, it would be appropriate to reproduce the questions referred for opinion in IT Ref. No. 287/81 :

(2.) BEFORE adverting to the aforesaid questions, it would be appropriate to state the background facts under which these questions have arisen in all these cases. The various assessees in these cases are family members who were provided accommodation in the residential house known as 'Modi Bhawan'. This was treated as a perquisite to them. These persons included one G.M. Modi. In a return filed by G.M. Modi the question arose as to whether the value of the perquisite on account of the aforesaid residential house was assessable under S. 2 (24)(iv) of the IT Act or S. 17(2) of the said Act. Income tax Appellate Tribunal (Delhi Bench B) decided on 12th Dec., 1974, the said questions in favour of G.M. Modi holding that it is the provision of S. 17(2) which would be applicable in the instant case. It is this order of the Tribunal, which was in respect of asst. yrs. 1965 66, 1966 67 and 1967 68, which has been followed in the case of G.M. Modi for subsequent years as well as of other assessees in respect of various assessment years. The IT Department that is the CIT sought reference under S. 256(2) of the IT Act against these orders of the decision of the Tribunal and the orders were passed by this Court directing the Tribunal to refer the aforesaid questions for its opinion. Since some of the assessees were subject to the jurisdiction of IT Department in U.P., the High Court of Judicature at Allahabad also directed the aforesaid questions to be referred for its opinion. By orders of Supreme Court, all these references stood transferred to this Court.

(3.) COMING back to present references, as already noticed above, the lead case in which the Tribunal decided the matter in the first instance was that of the assessee G.M. Modi and decision rendered on 12th Dec., 1974. The reference cases which have arisen out of that are IT Refs. 206 to 211/1993. These cases were received in this Court on transfer from High Court of Judicature at Allahabad in the year 1993. The cases were listed before the Joint Registrar from time to time and the Department was directed to file the paper books. In spite of scores of opportunities having been given to the Revenue for this purpose, no paper books have been filed although in the process more than seven years have expired. When the matter came up for final hearing on 6th Dec., 2001, Mr. R.C. Pandey, learned counsel for the Revenue, was candid in accepting the position that even if further time is allowed for this purpose, Department shall not be in a position to file the paper books as the relevant papers are not traceable with the Department. In the absence of paper books in these cases, it is not possible to determine the question. Therefore, there is no option but to reject these references for non prosecution [See CIT vs. Bombay Master Printers Association (1984) 146 ITR 339 (Bom) : TC 55R.1079 and CIT vs. ITAT & Anr. (1998) 150 CTR (Del) 319 : (1998) 232 ITR 207 (Del) : TC S55.4356. We order accordingly. The effect of that would be to uphold the decision of the Tribunal.