COMMISSIONER OF INCOME TAX Vs. MATHAI K U

JUDGEMENT

(1.) AT the instance of the Revenue, the Income-tax Appellate Tribunal has referred the following question of law for the decision of this court:

(2.) WE heard counsel. The decision in the case of K. I, Kuriakose, referred to by the Appellate Tribunal, came to this court along with a series of other cases and they are I. T. R. Nos. 560 to 563 of 1985 and I. T. R. Nos. 90 to 93 of 1986--CIT v. Varghese Mathew [1991] 190 ITR 356. The said cases were disposed of by a Bench of this court by a common judgment dated October 12, 1989. This court found that the Appellate Tribunal had referred to innumerable decisions of various Tribunals, some of them conflicting in nature, before arriving at a conclusion. But, none of the decisions rendered by the various Benches of the Tribunal were available in the paper book, nor made available before us. It was further found, in the earlier cases, that the order of the Appellate Tribunal suffers from a fundamental infirmity, in that the question as to whether the assessee's claim for deduction is allowable depends upon the nature of the income received by the assessee. This court posed the question as to whether the incentive bonus received in that case by the assessees formed part of their salary or is it outside the salary income, as a fundamental question to be adjudicated in the case. The contract of employment by which the salary and other amounts are payable to the assessee does not form part of the paper book. The assessee himself claimed that he received the commission as per the terms and conditions of the employment letters dated November 5, 1976, and November 19, 1976. But, these letters do not form part of the paper book. Why and for what reason and on what basis was the commission paid to the assessee is not clear. Only if a finding is rendered on that crucial aspect, the further question as to whether the assessee is entitled to any deduction for earning the said commission will arise for consideration. On these and other aspects, we are of the view that the Appellate Tribunal has totally failed to apply its mind to the crucial question that arose for consideration in this case. As the ultimate fact-finding authority, the Tribunal should have applied its mind to the various aspects that are germane to the enquiry instead of simply stating that the facts and circumstances of the present case are similar to the facts and circumstances in the case of K. I. Kuriakose.

(3.) THE reference is disposed of as above.