COMMISSIONER OF INCOME TAX Vs. JHAMAD G S

JUDGEMENT

(1.) THE applicant (Commissioner of Income-tax, Bhopal), has filed this application under Section 256(2) of the Income-tax act, 1961 (for short "the Act"), seeking a direction to the Tribunal to state the case and refer the question as extracted below arising out of the order dated March 30, 1990, passed by the Tribunal in I. T. A. No. 653/Ind of 1988 after rejection of the application, presented under Section 256(1) of the Act, registered as R. A. No. 142/Ind of 1990 for the assessment year 1981-82 on June 10, 1991 :

(2.) BRIEFLY stated, the facts of the case are that the claim of 40 per cent, expenses from the receipts of incentive bonus and additional conveyance allowance was negatived by the Income-tax Officer and the Appellate Assistant Commissioner. The Tribunal, however, allowed the appeal of the assessee holding that the incentive bonus and additional conveyance allowance was not part of the salary and 40 per cent, expenses were allowable from it. The Tribunal based its order on decisions in ITO v. Rajkumar Sethi--135 of selected orders of the Income-tax Appellate Tribunal and Sixth ITO v. Narendra V. Patel [1985] 11 ITD 587 (Bom) and other cases. The Department felt that the order of the Tribunal was erroneous in view of the decision in K.A. Choudary v. CIT[1990] 183 ITR 29, rendered by the Andhra Pradesh High Court, and it filed an application under Section 256(1) of the Act which was rejected. The application submitted under Section 254(2) of the Act was also rejected. The Department thereafter filed this application under Section 256(2) of the Act.

(3.) COUNSEL for the applicant submitted that the same question, as is called for in the aforesaid cases, be called for in this case also.