| SooperKanoon Citation | sooperkanoon.com/510422 |
| Subject | Direct Taxation |
| Court | Madhya Pradesh High Court |
| Decided On | Sep-27-1995 |
| Case Number | MCC No. 563 of 1995 & other connected cases, 27th September, 1995 |
| Reported in | (1996)130CTR(MP)431 |
| Appellant | Commissioner of Income Tax |
| Respondent | Co-operative Processing and Marketing Society. |
Notice (8): Undefined variable: kword [APP/View/Case/amp.ctp, line 120]Code Contextecho "<div class='table-bordered'><b>Excerpt:</b><br/>";if (trim($desc['Judgement']['casenote'])) {echo $this->Wand->highlight($this->Excerpt->extractRelevant($kword,strtolower(strip_tags($desc['Judgement']['casenote']))), $query);$viewFile = '/home/legalcrystal/app/View/Case/amp.ctp' $dataForView = array( 'title_for_layout' => 'Commissioner of Income Tax Vs Co Operative Processing and Marketing Society - Citation 510422 - Court Judgment | ', 'desc' => array( 'Judgement' => array( 'id' => '510422', 'acts' => '', 'appealno' => 'MCC No. 563 of 1995 & other connected cases, 27th September, 1995', 'appellant' => 'Commissioner of Income Tax', 'authreffered' => '', 'casename' => 'Commissioner of Income Tax Vs. Co-operative Processing and Marketing Society.', 'casenote' => ' - CONSTITUTION OF INDIA 1055. Article 141; [A.K. Patnaik, C.J., Dipak Misra, Abhay Gohil, S. Samvatsar, & S.K. Gangele, JJ] Dismissal of SLP arising from decision of High Court Whether binding precedent Decision of Division Bench in Rama and Company v. State of Madhya Pradesh, [2007(II) MPJR 229] overruled by Full Bench of same High Court Prior to delivery of decision of Full Bench order passed in Division Bench decision assailed in SLP before Supreme Court Dismissal of SLP by short reasoned order, though declaration of law, but High Court is bound to follow earlier decisions in field regard being had to concept of precedents as per law laid down by Apex Court and Larger bench decision in Jabalpur Bus Operators Association, reported in [2003(1) MPJR 158]. Court clarifies that Dr. Jaidev Siddha v. Jaiprakash Siddha, 2007(2) MPJR (FB) 361; AIR 2007 MP 269 (FB) is not impliedly overruled in view of dismissal of SLP Articles 226 & 227; [A.K. Patnaik, C.J., Dipak Misra, Abhay Gohil, S. Samvatsar, & S.K. Gangele, JJ] Power to issue writ under Article 226 - [per Majority] The High Courts exercise original jurisdiction under Article 226 of the Constitution and supervisory jurisdiction and the power of superintendence under Article 227 of the Constitution. But, an eloquent and fertile one, a writ of certiorari is issued in exercise of original jurisdiction. Whenever word supervisory has been used in the context of Article 226 it is in contrast with the appellate or revisional jurisdiction. When a writ is issued under Article 226 of the Constitution in respect of Courts or tribunals it is done in exercise of original jurisdiction and the parameters are different than Article 227 of the Constitution of India. It is worth noting that the power under Article 227 was there in a different manner under the Government of India Act. Power of superintendence is distinct from the exercise of power of revisional or supervisory jurisdiction which is a facet of the power of superintendence. The confusion occurs when one applies the principle of equivalence or equates the exercise of supervisory power and power of superintendence with original or supervisory jurisdiction. There is an acceptable nuance between the concept of jurisdiction and exercise of power by certain parameters. Both do come within the fundamental concept of judicial review but the jurisdiction exercised is different when under Article 226 a writ is issued it is issued in exercise of original jurisdiction whether against a tribunal or inferior Courts or administrative authorities. The word superintendence has not been used in Article 226 of the Constitution. It is also evident that the term writs is not referred to in Article 227. On a scrutiny of Article 227 it would be crystal clear that power of superintendence conferred on the High Courts is a power that is restricted to the Courts and tribunal in relation to which it exercises jurisdiction. On the contrary the power conferred on the High Court under Article 226 is not constricted and confined to the Courts and tribunals but it extends to any person or authority. Be it noted, Article 226 as has been engrafted in the Constitution covers entirely a new area, a broader one in a larger spectrum. When the Legislature has used the terms in exercise of original jurisdiction and supervisory jurisdiction it has to be understood that they are used in contradistinction in the constitutional context as has been interpreted by the Apex Court. The words of the Section have to be understood to mean exercise of powers under Article 226 of the Constitution of India which is always original. -- M.P. SAMAJ KE KAMJOR VARGON KE KRISHI BHUMI HADAPNE SAMBANDHI KUCHAKRON SE PARITRAN TATHA MUKTI ADHINIYAM [3/1977]. Section 2: Writ appeal Maintainability from order of single Judge-When permissible Held, Maintainability of a writ appeal from an order of the learned single Judge would depend upon many an aspect and cannot be put into a strait jacket formula. It cannot be stated with mathematical exactitude. It would depend upon the pleadings in the writ petition, nature of the order passed by the single Judge, character and the contour of the order, directions issued, nomenclature given and the jurisdictional prospective in the constitutional context are to be perceived. It cannot be said in a hyper-technical manner that an order passed in a writ petition, if there is assail to the order emerging from the inferior tribunal or subordinate Courts has to be treated all the time for all purposes to be under Article 227 of the Constitution of India. It would depend upon the real nature of the order passed by the learned single Judge. The pleadings also assume immense significance. It would not be an over emphasis to state that an order in a writ petition can fit into the subtle contour of Articles 226 and 227 of the Constitution in a composite manner and they can co-inside, co-exist, overlap or imbricate. In this context it is apt to note that there may be cases where the single Judge may feel disposed or inclined to issue a writ to do full and complete justice because it is to be borne in mind that Article 226 of the Constitution is fundamentally a repository and reservoir of justice based on equity and good conscience. It will depend upon factual matrix of each case. Dr. Jaidev Siddha v. Jaiprakash Siddha, 2007(2) MPJR (FB) 361: AIR 2007 MP 269 (FB) is not impliedly overruled in view of dismissal of SLP preferred against order reported in Rama and Company v. State of Madhya Pradesh [2007 (2) MPJR 229 (DB) (MP)]. - The Tribunal only directed the AO to verify whether payment has been made and if satisfied to grant deduction.', 'caseanalysis' => null, 'casesref' => '', 'citingcases' => '', 'counselplain' => '', 'counseldef' => '', 'court' => 'Madhya Pradesh', 'court_type' => 'HC', 'decidedon' => '1995-09-27', 'deposition' => '', 'favorof' => null, 'findings' => null, 'judge' => '', 'judgement' => 'ORDER<p style="text-align: justify;">BY THE COURT :</p><p style="text-align: justify;">These are applications filed by the Revenue under s. 256(2) of the IT Act, 1961, for stating the case and to make reference of the following common questions :</p><p style="text-align: justify;">'(i) Whether, on the facts and in the circumstances of the case, the Tribunal was justified in holding that ginning and pressing charges received from the members is allowable as an exemption though it was with the aid of power ?</p><p style="text-align: justify;">(ii) Whether, on the facts and in the circumstances of the case, the Tribunal was justified in holding that the claim of the assessee though not admissible within the provisions of s. 80P(2)(v) but is admissible under s. 80P(2)(a)(iii) </p><p style="text-align: justify;">(iii) Whether, on the facts and in the circumstances of the case, the Tribunal was justified in deleting interest under s. 217 </p><p style="text-align: justify;">(iv) Whether, on the facts and in the circumstances of the case, the Tribunal was justified in deleting interest under s. 217 </p><p style="text-align: justify;">(v) Whether, on the facts and in the circumstances of the case, Tribunal was justified in directing the Assessing Officer to verify the claim and to allow it the payment of sales-tax, central sales-tax, and entry-tax has been made before filing the returns under s. 139(1) even when the proviso was introduced w.e.f. 1st April, 1988, and not for the earlier years </p><p style="text-align: justify;">(vi) Whether, on the facts and in the circumstances of the case, Tribunal was justified in deleting the penalty amounting to Rs. 1,30,000 on the ground that the foundation of levy of penalty does stand even when the Department has not accepted the same ?'</p><p style="text-align: justify;">2. We have heard learned senior standing counsel for the Revenue. The assessee involved in these case is a co-operative society. The assessment years are during the period 1981 to 1985. Questions 1 and 2 are practically a repetition of the same question. Question No. 4 is a repetition of question No. 3. Therefore, the question No. 4 is deleted. Questions 5 and 6 are renumbered as question Nos. 4 and 5.</p><p style="text-align: justify;">3. The assessee is a co-operative society whose members are cotton growers. The society has been established to help the members in the matter of ginning and pressing cotton and finding market for the processed cotton. The society charges fee for ginning and pressing and also collects a fee for assessing the marketing operations from members. The society contended that it is engaged in marketing of agricultural produce of its members and also processing the agricultural produce of its members and, therefore, it is entitled for deduction of the whole of amount of profit and gains of business attributable to such activities from the assessable income under s. 80P(2) of the Act. The Assessing Officer (AO) negatived this claim on the ground that s. 80P(2)(v) can be invoked only where the processing is done without the aid of power and since processing is done by the assessee with the aid of power, deduction cannot be granted. The appellate authority and the Tribunal took the view that deduction has to be granted under s. 80P(2)(iii) of the Act since the society is engaged in marketing of agricultural produce of its members. It is this decision which has given rise to question Nos. 1 and 2. Question No. 3 is incidental to the answers to question Nos. 1 and 2.</p><p style="text-align: justify;">4. Sec. 43B of the Act states, inter alia, that where sales-tax, central sales-tax and entry-tax is alleged to be paid, deduction is to be given only on actual payment and not on the basis of subsistence of liability. The AO held that payment is not proved and deleted deduction. Tribunal directed him to enquire under the question as to what extent payment has been made and to give deduction to the actual payment made. This decision has led to question No. 4. Question No. 5 is incidental to the answers to other questions.</p><p style="text-align: justify;">5. The order of the Tribunal makes it abundantly clear that deduction is granted in regard to profits from the ginning and pressing operation only because the society is engaged in marketing of agricultural produce of its members. This is under s. 80P(2)(iii) of the Act. The condition that processing shall be done without the aid of the power, seen in sub-cl. (v), is not a condition precedent with reference to sub-cl. (iii). This matter has been clarified by the Supreme Court with reference to the provisions of the Act as they stood prior to 1968 amendment [see Broach Distt. Co-operative Cotton Sales Ginning & Pressing Society Ltd. vs . CIT : [1989]177ITR418(SC) ]. In regard to the controversy arising in these cases, the amendment has not made any practical difference. The question is, therefore, covered by the decision of the Supreme Court and cannot be said to arise.</p><p style="text-align: justify;">6. The Tribunal has not granted deduction to the assessee under s. 43B of the Act in regard to the alleged payments of sales-tax, central sales-tax and entry-tax. The Tribunal only directed the AO to verify whether payment has been made and if satisfied to grant deduction. This part of the decision of the Tribunal cannot be said to have given rise to any question of law. Other questions are incidental to the alleged main questions and do not require independent consideration.</p><p style="text-align: justify;">7. For the reasons indicated above, we hold that no question of law calling for stating the case and making a reference arises for consideration in these cases. Applications are accordingly dismissed.<p style="text-align: justify;"></p><p style="text-align: justify;">', 'observations' => null, 'overruledby' => null, 'prhistory' => '', 'pubs' => '(1996)130CTR(MP)431', 'ratiodecidendi' => '', 'respondent' => 'Co-operative Processing and Marketing Society.', 'sub' => 'Direct Taxation', 'link' => null, 'circuit' => null ) ), 'casename_url' => 'commissioner-income-tax-vs-operative-processing', 'args' => array( (int) 0 => '510422', (int) 1 => 'commissioner-income-tax-vs-operative-processing' ) ) $title_for_layout = 'Commissioner of Income Tax Vs Co Operative Processing and Marketing Society - Citation 510422 - Court Judgment | ' $desc = array( 'Judgement' => array( 'id' => '510422', 'acts' => '', 'appealno' => 'MCC No. 563 of 1995 & other connected cases, 27th September, 1995', 'appellant' => 'Commissioner of Income Tax', 'authreffered' => '', 'casename' => 'Commissioner of Income Tax Vs. Co-operative Processing and Marketing Society.', 'casenote' => ' - CONSTITUTION OF INDIA 1055. Article 141; [A.K. Patnaik, C.J., Dipak Misra, Abhay Gohil, S. Samvatsar, & S.K. Gangele, JJ] Dismissal of SLP arising from decision of High Court Whether binding precedent Decision of Division Bench in Rama and Company v. State of Madhya Pradesh, [2007(II) MPJR 229] overruled by Full Bench of same High Court Prior to delivery of decision of Full Bench order passed in Division Bench decision assailed in SLP before Supreme Court Dismissal of SLP by short reasoned order, though declaration of law, but High Court is bound to follow earlier decisions in field regard being had to concept of precedents as per law laid down by Apex Court and Larger bench decision in Jabalpur Bus Operators Association, reported in [2003(1) MPJR 158]. Court clarifies that Dr. Jaidev Siddha v. Jaiprakash Siddha, 2007(2) MPJR (FB) 361; AIR 2007 MP 269 (FB) is not impliedly overruled in view of dismissal of SLP Articles 226 & 227; [A.K. Patnaik, C.J., Dipak Misra, Abhay Gohil, S. Samvatsar, & S.K. Gangele, JJ] Power to issue writ under Article 226 - [per Majority] The High Courts exercise original jurisdiction under Article 226 of the Constitution and supervisory jurisdiction and the power of superintendence under Article 227 of the Constitution. But, an eloquent and fertile one, a writ of certiorari is issued in exercise of original jurisdiction. Whenever word supervisory has been used in the context of Article 226 it is in contrast with the appellate or revisional jurisdiction. When a writ is issued under Article 226 of the Constitution in respect of Courts or tribunals it is done in exercise of original jurisdiction and the parameters are different than Article 227 of the Constitution of India. It is worth noting that the power under Article 227 was there in a different manner under the Government of India Act. Power of superintendence is distinct from the exercise of power of revisional or supervisory jurisdiction which is a facet of the power of superintendence. The confusion occurs when one applies the principle of equivalence or equates the exercise of supervisory power and power of superintendence with original or supervisory jurisdiction. There is an acceptable nuance between the concept of jurisdiction and exercise of power by certain parameters. Both do come within the fundamental concept of judicial review but the jurisdiction exercised is different when under Article 226 a writ is issued it is issued in exercise of original jurisdiction whether against a tribunal or inferior Courts or administrative authorities. The word superintendence has not been used in Article 226 of the Constitution. It is also evident that the term writs is not referred to in Article 227. On a scrutiny of Article 227 it would be crystal clear that power of superintendence conferred on the High Courts is a power that is restricted to the Courts and tribunal in relation to which it exercises jurisdiction. On the contrary the power conferred on the High Court under Article 226 is not constricted and confined to the Courts and tribunals but it extends to any person or authority. Be it noted, Article 226 as has been engrafted in the Constitution covers entirely a new area, a broader one in a larger spectrum. When the Legislature has used the terms in exercise of original jurisdiction and supervisory jurisdiction it has to be understood that they are used in contradistinction in the constitutional context as has been interpreted by the Apex Court. The words of the Section have to be understood to mean exercise of powers under Article 226 of the Constitution of India which is always original. -- M.P. SAMAJ KE KAMJOR VARGON KE KRISHI BHUMI HADAPNE SAMBANDHI KUCHAKRON SE PARITRAN TATHA MUKTI ADHINIYAM [3/1977]. Section 2: Writ appeal Maintainability from order of single Judge-When permissible Held, Maintainability of a writ appeal from an order of the learned single Judge would depend upon many an aspect and cannot be put into a strait jacket formula. It cannot be stated with mathematical exactitude. It would depend upon the pleadings in the writ petition, nature of the order passed by the single Judge, character and the contour of the order, directions issued, nomenclature given and the jurisdictional prospective in the constitutional context are to be perceived. It cannot be said in a hyper-technical manner that an order passed in a writ petition, if there is assail to the order emerging from the inferior tribunal or subordinate Courts has to be treated all the time for all purposes to be under Article 227 of the Constitution of India. It would depend upon the real nature of the order passed by the learned single Judge. The pleadings also assume immense significance. It would not be an over emphasis to state that an order in a writ petition can fit into the subtle contour of Articles 226 and 227 of the Constitution in a composite manner and they can co-inside, co-exist, overlap or imbricate. In this context it is apt to note that there may be cases where the single Judge may feel disposed or inclined to issue a writ to do full and complete justice because it is to be borne in mind that Article 226 of the Constitution is fundamentally a repository and reservoir of justice based on equity and good conscience. It will depend upon factual matrix of each case. Dr. Jaidev Siddha v. Jaiprakash Siddha, 2007(2) MPJR (FB) 361: AIR 2007 MP 269 (FB) is not impliedly overruled in view of dismissal of SLP preferred against order reported in Rama and Company v. State of Madhya Pradesh [2007 (2) MPJR 229 (DB) (MP)]. - The Tribunal only directed the AO to verify whether payment has been made and if satisfied to grant deduction.', 'caseanalysis' => null, 'casesref' => '', 'citingcases' => '', 'counselplain' => '', 'counseldef' => '', 'court' => 'Madhya Pradesh', 'court_type' => 'HC', 'decidedon' => '1995-09-27', 'deposition' => '', 'favorof' => null, 'findings' => null, 'judge' => '', 'judgement' => 'ORDER<p>BY THE COURT :</p><p>These are applications filed by the Revenue under s. 256(2) of the IT Act, 1961, for stating the case and to make reference of the following common questions :</p><p>'(i) Whether, on the facts and in the circumstances of the case, the Tribunal was justified in holding that ginning and pressing charges received from the members is allowable as an exemption though it was with the aid of power ?</p><p>(ii) Whether, on the facts and in the circumstances of the case, the Tribunal was justified in holding that the claim of the assessee though not admissible within the provisions of s. 80P(2)(v) but is admissible under s. 80P(2)(a)(iii) </p><p>(iii) Whether, on the facts and in the circumstances of the case, the Tribunal was justified in deleting interest under s. 217 </p><p>(iv) Whether, on the facts and in the circumstances of the case, the Tribunal was justified in deleting interest under s. 217 </p><p>(v) Whether, on the facts and in the circumstances of the case, Tribunal was justified in directing the Assessing Officer to verify the claim and to allow it the payment of sales-tax, central sales-tax, and entry-tax has been made before filing the returns under s. 139(1) even when the proviso was introduced w.e.f. 1st April, 1988, and not for the earlier years </p><p>(vi) Whether, on the facts and in the circumstances of the case, Tribunal was justified in deleting the penalty amounting to Rs. 1,30,000 on the ground that the foundation of levy of penalty does stand even when the Department has not accepted the same ?'</p><p>2. We have heard learned senior standing counsel for the Revenue. The assessee involved in these case is a co-operative society. The assessment years are during the period 1981 to 1985. Questions 1 and 2 are practically a repetition of the same question. Question No. 4 is a repetition of question No. 3. Therefore, the question No. 4 is deleted. Questions 5 and 6 are renumbered as question Nos. 4 and 5.</p><p>3. The assessee is a co-operative society whose members are cotton growers. The society has been established to help the members in the matter of ginning and pressing cotton and finding market for the processed cotton. The society charges fee for ginning and pressing and also collects a fee for assessing the marketing operations from members. The society contended that it is engaged in marketing of agricultural produce of its members and also processing the agricultural produce of its members and, therefore, it is entitled for deduction of the whole of amount of profit and gains of business attributable to such activities from the assessable income under s. 80P(2) of the Act. The Assessing Officer (AO) negatived this claim on the ground that s. 80P(2)(v) can be invoked only where the processing is done without the aid of power and since processing is done by the assessee with the aid of power, deduction cannot be granted. The appellate authority and the Tribunal took the view that deduction has to be granted under s. 80P(2)(iii) of the Act since the society is engaged in marketing of agricultural produce of its members. It is this decision which has given rise to question Nos. 1 and 2. Question No. 3 is incidental to the answers to question Nos. 1 and 2.</p><p>4. Sec. 43B of the Act states, inter alia, that where sales-tax, central sales-tax and entry-tax is alleged to be paid, deduction is to be given only on actual payment and not on the basis of subsistence of liability. The AO held that payment is not proved and deleted deduction. Tribunal directed him to enquire under the question as to what extent payment has been made and to give deduction to the actual payment made. This decision has led to question No. 4. Question No. 5 is incidental to the answers to other questions.</p><p>5. The order of the Tribunal makes it abundantly clear that deduction is granted in regard to profits from the ginning and pressing operation only because the society is engaged in marketing of agricultural produce of its members. This is under s. 80P(2)(iii) of the Act. The condition that processing shall be done without the aid of the power, seen in sub-cl. (v), is not a condition precedent with reference to sub-cl. (iii). This matter has been clarified by the Supreme Court with reference to the provisions of the Act as they stood prior to 1968 amendment [see Broach Distt. Co-operative Cotton Sales Ginning & Pressing Society Ltd. vs . CIT : [1989]177ITR418(SC) ]. In regard to the controversy arising in these cases, the amendment has not made any practical difference. The question is, therefore, covered by the decision of the Supreme Court and cannot be said to arise.</p><p>6. The Tribunal has not granted deduction to the assessee under s. 43B of the Act in regard to the alleged payments of sales-tax, central sales-tax and entry-tax. The Tribunal only directed the AO to verify whether payment has been made and if satisfied to grant deduction. This part of the decision of the Tribunal cannot be said to have given rise to any question of law. Other questions are incidental to the alleged main questions and do not require independent consideration.</p><p>7. For the reasons indicated above, we hold that no question of law calling for stating the case and making a reference arises for consideration in these cases. Applications are accordingly dismissed.<p></p><p>', 'observations' => null, 'overruledby' => null, 'prhistory' => '', 'pubs' => '(1996)130CTR(MP)431', 'ratiodecidendi' => '', 'respondent' => 'Co-operative Processing and Marketing Society.', 'sub' => 'Direct Taxation', 'link' => null, 'circuit' => null ) ) $casename_url = 'commissioner-income-tax-vs-operative-processing' $args = array( (int) 0 => '510422', (int) 1 => 'commissioner-income-tax-vs-operative-processing' ) $url = 'https://sooperkanoon.com/case/amp/510422/commissioner-income-tax-vs-operative-processing' $ctype = ' High Court'include - APP/View/Case/amp.ctp, line 120 View::_evaluate() - CORE/Cake/View/View.php, line 971 View::_render() - CORE/Cake/View/View.php, line 933 View::render() - CORE/Cake/View/View.php, line 473 Controller::render() - CORE/Cake/Controller/Controller.php, line 963 Dispatcher::_invoke() - CORE/Cake/Routing/Dispatcher.php, line 200 Dispatcher::dispatch() - CORE/Cake/Routing/Dispatcher.php, line 167 [main] - APP/webroot/index.php, line 109
Notice (8): Undefined variable: query [APP/View/Case/amp.ctp, line 120]- constitution of india 1055. article 141; [a.k. patnaik, c.j., dipak misra, abhay gohil, s. samvatsar, & s.k. gangele, jj] dismissal of slp arising from decision of high court whether binding precedent decision of division bench in rama and company v. state of madhya pradesh, [2007(ii) mpjr 229] overruled by full bench of same high court prior to delivery of decision of full bench order passed in division bench decision assailed in slp before supreme court dismissal of slp by short reasoned order, though declaration of law, but high court is bound to follow earlier decisions in field regard being had to concept of precedents as per law laid down by apex court and larger bench decision in jabalpur bus operators association, reported in [2003(1) mpjr 158]. court clarifies that dr......Code Contextecho "<div class='table-bordered'><b>Excerpt:</b><br/>";if (trim($desc['Judgement']['casenote'])) {echo $this->Wand->highlight($this->Excerpt->extractRelevant($kword,strtolower(strip_tags($desc['Judgement']['casenote']))), $query);$viewFile = '/home/legalcrystal/app/View/Case/amp.ctp' $dataForView = array( 'title_for_layout' => 'Commissioner of Income Tax Vs Co Operative Processing and Marketing Society - Citation 510422 - Court Judgment | ', 'desc' => array( 'Judgement' => array( 'id' => '510422', 'acts' => '', 'appealno' => 'MCC No. 563 of 1995 & other connected cases, 27th September, 1995', 'appellant' => 'Commissioner of Income Tax', 'authreffered' => '', 'casename' => 'Commissioner of Income Tax Vs. Co-operative Processing and Marketing Society.', 'casenote' => ' - CONSTITUTION OF INDIA 1055. Article 141; [A.K. Patnaik, C.J., Dipak Misra, Abhay Gohil, S. Samvatsar, & S.K. Gangele, JJ] Dismissal of SLP arising from decision of High Court Whether binding precedent Decision of Division Bench in Rama and Company v. State of Madhya Pradesh, [2007(II) MPJR 229] overruled by Full Bench of same High Court Prior to delivery of decision of Full Bench order passed in Division Bench decision assailed in SLP before Supreme Court Dismissal of SLP by short reasoned order, though declaration of law, but High Court is bound to follow earlier decisions in field regard being had to concept of precedents as per law laid down by Apex Court and Larger bench decision in Jabalpur Bus Operators Association, reported in [2003(1) MPJR 158]. Court clarifies that Dr. Jaidev Siddha v. Jaiprakash Siddha, 2007(2) MPJR (FB) 361; AIR 2007 MP 269 (FB) is not impliedly overruled in view of dismissal of SLP Articles 226 & 227; [A.K. Patnaik, C.J., Dipak Misra, Abhay Gohil, S. Samvatsar, & S.K. Gangele, JJ] Power to issue writ under Article 226 - [per Majority] The High Courts exercise original jurisdiction under Article 226 of the Constitution and supervisory jurisdiction and the power of superintendence under Article 227 of the Constitution. But, an eloquent and fertile one, a writ of certiorari is issued in exercise of original jurisdiction. Whenever word supervisory has been used in the context of Article 226 it is in contrast with the appellate or revisional jurisdiction. When a writ is issued under Article 226 of the Constitution in respect of Courts or tribunals it is done in exercise of original jurisdiction and the parameters are different than Article 227 of the Constitution of India. It is worth noting that the power under Article 227 was there in a different manner under the Government of India Act. Power of superintendence is distinct from the exercise of power of revisional or supervisory jurisdiction which is a facet of the power of superintendence. The confusion occurs when one applies the principle of equivalence or equates the exercise of supervisory power and power of superintendence with original or supervisory jurisdiction. There is an acceptable nuance between the concept of jurisdiction and exercise of power by certain parameters. Both do come within the fundamental concept of judicial review but the jurisdiction exercised is different when under Article 226 a writ is issued it is issued in exercise of original jurisdiction whether against a tribunal or inferior Courts or administrative authorities. The word superintendence has not been used in Article 226 of the Constitution. It is also evident that the term writs is not referred to in Article 227. On a scrutiny of Article 227 it would be crystal clear that power of superintendence conferred on the High Courts is a power that is restricted to the Courts and tribunal in relation to which it exercises jurisdiction. On the contrary the power conferred on the High Court under Article 226 is not constricted and confined to the Courts and tribunals but it extends to any person or authority. Be it noted, Article 226 as has been engrafted in the Constitution covers entirely a new area, a broader one in a larger spectrum. When the Legislature has used the terms in exercise of original jurisdiction and supervisory jurisdiction it has to be understood that they are used in contradistinction in the constitutional context as has been interpreted by the Apex Court. The words of the Section have to be understood to mean exercise of powers under Article 226 of the Constitution of India which is always original. -- M.P. SAMAJ KE KAMJOR VARGON KE KRISHI BHUMI HADAPNE SAMBANDHI KUCHAKRON SE PARITRAN TATHA MUKTI ADHINIYAM [3/1977]. Section 2: Writ appeal Maintainability from order of single Judge-When permissible Held, Maintainability of a writ appeal from an order of the learned single Judge would depend upon many an aspect and cannot be put into a strait jacket formula. It cannot be stated with mathematical exactitude. It would depend upon the pleadings in the writ petition, nature of the order passed by the single Judge, character and the contour of the order, directions issued, nomenclature given and the jurisdictional prospective in the constitutional context are to be perceived. It cannot be said in a hyper-technical manner that an order passed in a writ petition, if there is assail to the order emerging from the inferior tribunal or subordinate Courts has to be treated all the time for all purposes to be under Article 227 of the Constitution of India. It would depend upon the real nature of the order passed by the learned single Judge. The pleadings also assume immense significance. It would not be an over emphasis to state that an order in a writ petition can fit into the subtle contour of Articles 226 and 227 of the Constitution in a composite manner and they can co-inside, co-exist, overlap or imbricate. In this context it is apt to note that there may be cases where the single Judge may feel disposed or inclined to issue a writ to do full and complete justice because it is to be borne in mind that Article 226 of the Constitution is fundamentally a repository and reservoir of justice based on equity and good conscience. It will depend upon factual matrix of each case. Dr. Jaidev Siddha v. Jaiprakash Siddha, 2007(2) MPJR (FB) 361: AIR 2007 MP 269 (FB) is not impliedly overruled in view of dismissal of SLP preferred against order reported in Rama and Company v. State of Madhya Pradesh [2007 (2) MPJR 229 (DB) (MP)]. - The Tribunal only directed the AO to verify whether payment has been made and if satisfied to grant deduction.', 'caseanalysis' => null, 'casesref' => '', 'citingcases' => '', 'counselplain' => '', 'counseldef' => '', 'court' => 'Madhya Pradesh', 'court_type' => 'HC', 'decidedon' => '1995-09-27', 'deposition' => '', 'favorof' => null, 'findings' => null, 'judge' => '', 'judgement' => 'ORDER<p style="text-align: justify;">BY THE COURT :</p><p style="text-align: justify;">These are applications filed by the Revenue under s. 256(2) of the IT Act, 1961, for stating the case and to make reference of the following common questions :</p><p style="text-align: justify;">'(i) Whether, on the facts and in the circumstances of the case, the Tribunal was justified in holding that ginning and pressing charges received from the members is allowable as an exemption though it was with the aid of power ?</p><p style="text-align: justify;">(ii) Whether, on the facts and in the circumstances of the case, the Tribunal was justified in holding that the claim of the assessee though not admissible within the provisions of s. 80P(2)(v) but is admissible under s. 80P(2)(a)(iii) </p><p style="text-align: justify;">(iii) Whether, on the facts and in the circumstances of the case, the Tribunal was justified in deleting interest under s. 217 </p><p style="text-align: justify;">(iv) Whether, on the facts and in the circumstances of the case, the Tribunal was justified in deleting interest under s. 217 </p><p style="text-align: justify;">(v) Whether, on the facts and in the circumstances of the case, Tribunal was justified in directing the Assessing Officer to verify the claim and to allow it the payment of sales-tax, central sales-tax, and entry-tax has been made before filing the returns under s. 139(1) even when the proviso was introduced w.e.f. 1st April, 1988, and not for the earlier years </p><p style="text-align: justify;">(vi) Whether, on the facts and in the circumstances of the case, Tribunal was justified in deleting the penalty amounting to Rs. 1,30,000 on the ground that the foundation of levy of penalty does stand even when the Department has not accepted the same ?'</p><p style="text-align: justify;">2. We have heard learned senior standing counsel for the Revenue. The assessee involved in these case is a co-operative society. The assessment years are during the period 1981 to 1985. Questions 1 and 2 are practically a repetition of the same question. Question No. 4 is a repetition of question No. 3. Therefore, the question No. 4 is deleted. Questions 5 and 6 are renumbered as question Nos. 4 and 5.</p><p style="text-align: justify;">3. The assessee is a co-operative society whose members are cotton growers. The society has been established to help the members in the matter of ginning and pressing cotton and finding market for the processed cotton. The society charges fee for ginning and pressing and also collects a fee for assessing the marketing operations from members. The society contended that it is engaged in marketing of agricultural produce of its members and also processing the agricultural produce of its members and, therefore, it is entitled for deduction of the whole of amount of profit and gains of business attributable to such activities from the assessable income under s. 80P(2) of the Act. The Assessing Officer (AO) negatived this claim on the ground that s. 80P(2)(v) can be invoked only where the processing is done without the aid of power and since processing is done by the assessee with the aid of power, deduction cannot be granted. The appellate authority and the Tribunal took the view that deduction has to be granted under s. 80P(2)(iii) of the Act since the society is engaged in marketing of agricultural produce of its members. It is this decision which has given rise to question Nos. 1 and 2. Question No. 3 is incidental to the answers to question Nos. 1 and 2.</p><p style="text-align: justify;">4. Sec. 43B of the Act states, inter alia, that where sales-tax, central sales-tax and entry-tax is alleged to be paid, deduction is to be given only on actual payment and not on the basis of subsistence of liability. The AO held that payment is not proved and deleted deduction. Tribunal directed him to enquire under the question as to what extent payment has been made and to give deduction to the actual payment made. This decision has led to question No. 4. Question No. 5 is incidental to the answers to other questions.</p><p style="text-align: justify;">5. The order of the Tribunal makes it abundantly clear that deduction is granted in regard to profits from the ginning and pressing operation only because the society is engaged in marketing of agricultural produce of its members. This is under s. 80P(2)(iii) of the Act. The condition that processing shall be done without the aid of the power, seen in sub-cl. (v), is not a condition precedent with reference to sub-cl. (iii). This matter has been clarified by the Supreme Court with reference to the provisions of the Act as they stood prior to 1968 amendment [see Broach Distt. Co-operative Cotton Sales Ginning & Pressing Society Ltd. vs . CIT : [1989]177ITR418(SC) ]. In regard to the controversy arising in these cases, the amendment has not made any practical difference. The question is, therefore, covered by the decision of the Supreme Court and cannot be said to arise.</p><p style="text-align: justify;">6. The Tribunal has not granted deduction to the assessee under s. 43B of the Act in regard to the alleged payments of sales-tax, central sales-tax and entry-tax. The Tribunal only directed the AO to verify whether payment has been made and if satisfied to grant deduction. This part of the decision of the Tribunal cannot be said to have given rise to any question of law. Other questions are incidental to the alleged main questions and do not require independent consideration.</p><p style="text-align: justify;">7. For the reasons indicated above, we hold that no question of law calling for stating the case and making a reference arises for consideration in these cases. Applications are accordingly dismissed.<p style="text-align: justify;"></p><p style="text-align: justify;">', 'observations' => null, 'overruledby' => null, 'prhistory' => '', 'pubs' => '(1996)130CTR(MP)431', 'ratiodecidendi' => '', 'respondent' => 'Co-operative Processing and Marketing Society.', 'sub' => 'Direct Taxation', 'link' => null, 'circuit' => null ) ), 'casename_url' => 'commissioner-income-tax-vs-operative-processing', 'args' => array( (int) 0 => '510422', (int) 1 => 'commissioner-income-tax-vs-operative-processing' ) ) $title_for_layout = 'Commissioner of Income Tax Vs Co Operative Processing and Marketing Society - Citation 510422 - Court Judgment | ' $desc = array( 'Judgement' => array( 'id' => '510422', 'acts' => '', 'appealno' => 'MCC No. 563 of 1995 & other connected cases, 27th September, 1995', 'appellant' => 'Commissioner of Income Tax', 'authreffered' => '', 'casename' => 'Commissioner of Income Tax Vs. Co-operative Processing and Marketing Society.', 'casenote' => ' - CONSTITUTION OF INDIA 1055. Article 141; [A.K. Patnaik, C.J., Dipak Misra, Abhay Gohil, S. Samvatsar, & S.K. Gangele, JJ] Dismissal of SLP arising from decision of High Court Whether binding precedent Decision of Division Bench in Rama and Company v. State of Madhya Pradesh, [2007(II) MPJR 229] overruled by Full Bench of same High Court Prior to delivery of decision of Full Bench order passed in Division Bench decision assailed in SLP before Supreme Court Dismissal of SLP by short reasoned order, though declaration of law, but High Court is bound to follow earlier decisions in field regard being had to concept of precedents as per law laid down by Apex Court and Larger bench decision in Jabalpur Bus Operators Association, reported in [2003(1) MPJR 158]. Court clarifies that Dr. Jaidev Siddha v. Jaiprakash Siddha, 2007(2) MPJR (FB) 361; AIR 2007 MP 269 (FB) is not impliedly overruled in view of dismissal of SLP Articles 226 & 227; [A.K. Patnaik, C.J., Dipak Misra, Abhay Gohil, S. Samvatsar, & S.K. Gangele, JJ] Power to issue writ under Article 226 - [per Majority] The High Courts exercise original jurisdiction under Article 226 of the Constitution and supervisory jurisdiction and the power of superintendence under Article 227 of the Constitution. But, an eloquent and fertile one, a writ of certiorari is issued in exercise of original jurisdiction. Whenever word supervisory has been used in the context of Article 226 it is in contrast with the appellate or revisional jurisdiction. When a writ is issued under Article 226 of the Constitution in respect of Courts or tribunals it is done in exercise of original jurisdiction and the parameters are different than Article 227 of the Constitution of India. It is worth noting that the power under Article 227 was there in a different manner under the Government of India Act. Power of superintendence is distinct from the exercise of power of revisional or supervisory jurisdiction which is a facet of the power of superintendence. The confusion occurs when one applies the principle of equivalence or equates the exercise of supervisory power and power of superintendence with original or supervisory jurisdiction. There is an acceptable nuance between the concept of jurisdiction and exercise of power by certain parameters. Both do come within the fundamental concept of judicial review but the jurisdiction exercised is different when under Article 226 a writ is issued it is issued in exercise of original jurisdiction whether against a tribunal or inferior Courts or administrative authorities. The word superintendence has not been used in Article 226 of the Constitution. It is also evident that the term writs is not referred to in Article 227. On a scrutiny of Article 227 it would be crystal clear that power of superintendence conferred on the High Courts is a power that is restricted to the Courts and tribunal in relation to which it exercises jurisdiction. On the contrary the power conferred on the High Court under Article 226 is not constricted and confined to the Courts and tribunals but it extends to any person or authority. Be it noted, Article 226 as has been engrafted in the Constitution covers entirely a new area, a broader one in a larger spectrum. When the Legislature has used the terms in exercise of original jurisdiction and supervisory jurisdiction it has to be understood that they are used in contradistinction in the constitutional context as has been interpreted by the Apex Court. The words of the Section have to be understood to mean exercise of powers under Article 226 of the Constitution of India which is always original. -- M.P. SAMAJ KE KAMJOR VARGON KE KRISHI BHUMI HADAPNE SAMBANDHI KUCHAKRON SE PARITRAN TATHA MUKTI ADHINIYAM [3/1977]. Section 2: Writ appeal Maintainability from order of single Judge-When permissible Held, Maintainability of a writ appeal from an order of the learned single Judge would depend upon many an aspect and cannot be put into a strait jacket formula. It cannot be stated with mathematical exactitude. It would depend upon the pleadings in the writ petition, nature of the order passed by the single Judge, character and the contour of the order, directions issued, nomenclature given and the jurisdictional prospective in the constitutional context are to be perceived. It cannot be said in a hyper-technical manner that an order passed in a writ petition, if there is assail to the order emerging from the inferior tribunal or subordinate Courts has to be treated all the time for all purposes to be under Article 227 of the Constitution of India. It would depend upon the real nature of the order passed by the learned single Judge. The pleadings also assume immense significance. It would not be an over emphasis to state that an order in a writ petition can fit into the subtle contour of Articles 226 and 227 of the Constitution in a composite manner and they can co-inside, co-exist, overlap or imbricate. In this context it is apt to note that there may be cases where the single Judge may feel disposed or inclined to issue a writ to do full and complete justice because it is to be borne in mind that Article 226 of the Constitution is fundamentally a repository and reservoir of justice based on equity and good conscience. It will depend upon factual matrix of each case. Dr. Jaidev Siddha v. Jaiprakash Siddha, 2007(2) MPJR (FB) 361: AIR 2007 MP 269 (FB) is not impliedly overruled in view of dismissal of SLP preferred against order reported in Rama and Company v. State of Madhya Pradesh [2007 (2) MPJR 229 (DB) (MP)]. - The Tribunal only directed the AO to verify whether payment has been made and if satisfied to grant deduction.', 'caseanalysis' => null, 'casesref' => '', 'citingcases' => '', 'counselplain' => '', 'counseldef' => '', 'court' => 'Madhya Pradesh', 'court_type' => 'HC', 'decidedon' => '1995-09-27', 'deposition' => '', 'favorof' => null, 'findings' => null, 'judge' => '', 'judgement' => 'ORDER<p>BY THE COURT :</p><p>These are applications filed by the Revenue under s. 256(2) of the IT Act, 1961, for stating the case and to make reference of the following common questions :</p><p>'(i) Whether, on the facts and in the circumstances of the case, the Tribunal was justified in holding that ginning and pressing charges received from the members is allowable as an exemption though it was with the aid of power ?</p><p>(ii) Whether, on the facts and in the circumstances of the case, the Tribunal was justified in holding that the claim of the assessee though not admissible within the provisions of s. 80P(2)(v) but is admissible under s. 80P(2)(a)(iii) </p><p>(iii) Whether, on the facts and in the circumstances of the case, the Tribunal was justified in deleting interest under s. 217 </p><p>(iv) Whether, on the facts and in the circumstances of the case, the Tribunal was justified in deleting interest under s. 217 </p><p>(v) Whether, on the facts and in the circumstances of the case, Tribunal was justified in directing the Assessing Officer to verify the claim and to allow it the payment of sales-tax, central sales-tax, and entry-tax has been made before filing the returns under s. 139(1) even when the proviso was introduced w.e.f. 1st April, 1988, and not for the earlier years </p><p>(vi) Whether, on the facts and in the circumstances of the case, Tribunal was justified in deleting the penalty amounting to Rs. 1,30,000 on the ground that the foundation of levy of penalty does stand even when the Department has not accepted the same ?'</p><p>2. We have heard learned senior standing counsel for the Revenue. The assessee involved in these case is a co-operative society. The assessment years are during the period 1981 to 1985. Questions 1 and 2 are practically a repetition of the same question. Question No. 4 is a repetition of question No. 3. Therefore, the question No. 4 is deleted. Questions 5 and 6 are renumbered as question Nos. 4 and 5.</p><p>3. The assessee is a co-operative society whose members are cotton growers. The society has been established to help the members in the matter of ginning and pressing cotton and finding market for the processed cotton. The society charges fee for ginning and pressing and also collects a fee for assessing the marketing operations from members. The society contended that it is engaged in marketing of agricultural produce of its members and also processing the agricultural produce of its members and, therefore, it is entitled for deduction of the whole of amount of profit and gains of business attributable to such activities from the assessable income under s. 80P(2) of the Act. The Assessing Officer (AO) negatived this claim on the ground that s. 80P(2)(v) can be invoked only where the processing is done without the aid of power and since processing is done by the assessee with the aid of power, deduction cannot be granted. The appellate authority and the Tribunal took the view that deduction has to be granted under s. 80P(2)(iii) of the Act since the society is engaged in marketing of agricultural produce of its members. It is this decision which has given rise to question Nos. 1 and 2. Question No. 3 is incidental to the answers to question Nos. 1 and 2.</p><p>4. Sec. 43B of the Act states, inter alia, that where sales-tax, central sales-tax and entry-tax is alleged to be paid, deduction is to be given only on actual payment and not on the basis of subsistence of liability. The AO held that payment is not proved and deleted deduction. Tribunal directed him to enquire under the question as to what extent payment has been made and to give deduction to the actual payment made. This decision has led to question No. 4. Question No. 5 is incidental to the answers to other questions.</p><p>5. The order of the Tribunal makes it abundantly clear that deduction is granted in regard to profits from the ginning and pressing operation only because the society is engaged in marketing of agricultural produce of its members. This is under s. 80P(2)(iii) of the Act. The condition that processing shall be done without the aid of the power, seen in sub-cl. (v), is not a condition precedent with reference to sub-cl. (iii). This matter has been clarified by the Supreme Court with reference to the provisions of the Act as they stood prior to 1968 amendment [see Broach Distt. Co-operative Cotton Sales Ginning & Pressing Society Ltd. vs . CIT : [1989]177ITR418(SC) ]. In regard to the controversy arising in these cases, the amendment has not made any practical difference. The question is, therefore, covered by the decision of the Supreme Court and cannot be said to arise.</p><p>6. The Tribunal has not granted deduction to the assessee under s. 43B of the Act in regard to the alleged payments of sales-tax, central sales-tax and entry-tax. The Tribunal only directed the AO to verify whether payment has been made and if satisfied to grant deduction. This part of the decision of the Tribunal cannot be said to have given rise to any question of law. Other questions are incidental to the alleged main questions and do not require independent consideration.</p><p>7. For the reasons indicated above, we hold that no question of law calling for stating the case and making a reference arises for consideration in these cases. Applications are accordingly dismissed.<p></p><p>', 'observations' => null, 'overruledby' => null, 'prhistory' => '', 'pubs' => '(1996)130CTR(MP)431', 'ratiodecidendi' => '', 'respondent' => 'Co-operative Processing and Marketing Society.', 'sub' => 'Direct Taxation', 'link' => null, 'circuit' => null ) ) $casename_url = 'commissioner-income-tax-vs-operative-processing' $args = array( (int) 0 => '510422', (int) 1 => 'commissioner-income-tax-vs-operative-processing' ) $url = 'https://sooperkanoon.com/case/amp/510422/commissioner-income-tax-vs-operative-processing' $ctype = ' High Court'include - APP/View/Case/amp.ctp, line 120 View::_evaluate() - CORE/Cake/View/View.php, line 971 View::_render() - CORE/Cake/View/View.php, line 933 View::render() - CORE/Cake/View/View.php, line 473 Controller::render() - CORE/Cake/Controller/Controller.php, line 963 Dispatcher::_invoke() - CORE/Cake/Routing/Dispatcher.php, line 200 Dispatcher::dispatch() - CORE/Cake/Routing/Dispatcher.php, line 167 [main] - APP/webroot/index.php, line 109
Notice (8): Undefined variable: kword [APP/View/Case/amp.ctp, line 123]Code Context}//highest occurence of word in the judgementecho $this->Wand->highlight($this->Excerpt->extractRelevant($kword,strtolower(strip_tags($desc['Judgement']['judgement']))), $query) . "</div>";$viewFile = '/home/legalcrystal/app/View/Case/amp.ctp' $dataForView = array( 'title_for_layout' => 'Commissioner of Income Tax Vs Co Operative Processing and Marketing Society - Citation 510422 - Court Judgment | ', 'desc' => array( 'Judgement' => array( 'id' => '510422', 'acts' => '', 'appealno' => 'MCC No. 563 of 1995 & other connected cases, 27th September, 1995', 'appellant' => 'Commissioner of Income Tax', 'authreffered' => '', 'casename' => 'Commissioner of Income Tax Vs. Co-operative Processing and Marketing Society.', 'casenote' => ' - CONSTITUTION OF INDIA 1055. Article 141; [A.K. Patnaik, C.J., Dipak Misra, Abhay Gohil, S. Samvatsar, & S.K. Gangele, JJ] Dismissal of SLP arising from decision of High Court Whether binding precedent Decision of Division Bench in Rama and Company v. State of Madhya Pradesh, [2007(II) MPJR 229] overruled by Full Bench of same High Court Prior to delivery of decision of Full Bench order passed in Division Bench decision assailed in SLP before Supreme Court Dismissal of SLP by short reasoned order, though declaration of law, but High Court is bound to follow earlier decisions in field regard being had to concept of precedents as per law laid down by Apex Court and Larger bench decision in Jabalpur Bus Operators Association, reported in [2003(1) MPJR 158]. Court clarifies that Dr. Jaidev Siddha v. Jaiprakash Siddha, 2007(2) MPJR (FB) 361; AIR 2007 MP 269 (FB) is not impliedly overruled in view of dismissal of SLP Articles 226 & 227; [A.K. Patnaik, C.J., Dipak Misra, Abhay Gohil, S. Samvatsar, & S.K. Gangele, JJ] Power to issue writ under Article 226 - [per Majority] The High Courts exercise original jurisdiction under Article 226 of the Constitution and supervisory jurisdiction and the power of superintendence under Article 227 of the Constitution. But, an eloquent and fertile one, a writ of certiorari is issued in exercise of original jurisdiction. Whenever word supervisory has been used in the context of Article 226 it is in contrast with the appellate or revisional jurisdiction. When a writ is issued under Article 226 of the Constitution in respect of Courts or tribunals it is done in exercise of original jurisdiction and the parameters are different than Article 227 of the Constitution of India. It is worth noting that the power under Article 227 was there in a different manner under the Government of India Act. Power of superintendence is distinct from the exercise of power of revisional or supervisory jurisdiction which is a facet of the power of superintendence. The confusion occurs when one applies the principle of equivalence or equates the exercise of supervisory power and power of superintendence with original or supervisory jurisdiction. There is an acceptable nuance between the concept of jurisdiction and exercise of power by certain parameters. Both do come within the fundamental concept of judicial review but the jurisdiction exercised is different when under Article 226 a writ is issued it is issued in exercise of original jurisdiction whether against a tribunal or inferior Courts or administrative authorities. The word superintendence has not been used in Article 226 of the Constitution. It is also evident that the term writs is not referred to in Article 227. On a scrutiny of Article 227 it would be crystal clear that power of superintendence conferred on the High Courts is a power that is restricted to the Courts and tribunal in relation to which it exercises jurisdiction. On the contrary the power conferred on the High Court under Article 226 is not constricted and confined to the Courts and tribunals but it extends to any person or authority. Be it noted, Article 226 as has been engrafted in the Constitution covers entirely a new area, a broader one in a larger spectrum. When the Legislature has used the terms in exercise of original jurisdiction and supervisory jurisdiction it has to be understood that they are used in contradistinction in the constitutional context as has been interpreted by the Apex Court. The words of the Section have to be understood to mean exercise of powers under Article 226 of the Constitution of India which is always original. -- M.P. SAMAJ KE KAMJOR VARGON KE KRISHI BHUMI HADAPNE SAMBANDHI KUCHAKRON SE PARITRAN TATHA MUKTI ADHINIYAM [3/1977]. Section 2: Writ appeal Maintainability from order of single Judge-When permissible Held, Maintainability of a writ appeal from an order of the learned single Judge would depend upon many an aspect and cannot be put into a strait jacket formula. It cannot be stated with mathematical exactitude. It would depend upon the pleadings in the writ petition, nature of the order passed by the single Judge, character and the contour of the order, directions issued, nomenclature given and the jurisdictional prospective in the constitutional context are to be perceived. It cannot be said in a hyper-technical manner that an order passed in a writ petition, if there is assail to the order emerging from the inferior tribunal or subordinate Courts has to be treated all the time for all purposes to be under Article 227 of the Constitution of India. It would depend upon the real nature of the order passed by the learned single Judge. The pleadings also assume immense significance. It would not be an over emphasis to state that an order in a writ petition can fit into the subtle contour of Articles 226 and 227 of the Constitution in a composite manner and they can co-inside, co-exist, overlap or imbricate. In this context it is apt to note that there may be cases where the single Judge may feel disposed or inclined to issue a writ to do full and complete justice because it is to be borne in mind that Article 226 of the Constitution is fundamentally a repository and reservoir of justice based on equity and good conscience. It will depend upon factual matrix of each case. Dr. Jaidev Siddha v. Jaiprakash Siddha, 2007(2) MPJR (FB) 361: AIR 2007 MP 269 (FB) is not impliedly overruled in view of dismissal of SLP preferred against order reported in Rama and Company v. State of Madhya Pradesh [2007 (2) MPJR 229 (DB) (MP)]. - The Tribunal only directed the AO to verify whether payment has been made and if satisfied to grant deduction.', 'caseanalysis' => null, 'casesref' => '', 'citingcases' => '', 'counselplain' => '', 'counseldef' => '', 'court' => 'Madhya Pradesh', 'court_type' => 'HC', 'decidedon' => '1995-09-27', 'deposition' => '', 'favorof' => null, 'findings' => null, 'judge' => '', 'judgement' => 'ORDER<p style="text-align: justify;">BY THE COURT :</p><p style="text-align: justify;">These are applications filed by the Revenue under s. 256(2) of the IT Act, 1961, for stating the case and to make reference of the following common questions :</p><p style="text-align: justify;">'(i) Whether, on the facts and in the circumstances of the case, the Tribunal was justified in holding that ginning and pressing charges received from the members is allowable as an exemption though it was with the aid of power ?</p><p style="text-align: justify;">(ii) Whether, on the facts and in the circumstances of the case, the Tribunal was justified in holding that the claim of the assessee though not admissible within the provisions of s. 80P(2)(v) but is admissible under s. 80P(2)(a)(iii) </p><p style="text-align: justify;">(iii) Whether, on the facts and in the circumstances of the case, the Tribunal was justified in deleting interest under s. 217 </p><p style="text-align: justify;">(iv) Whether, on the facts and in the circumstances of the case, the Tribunal was justified in deleting interest under s. 217 </p><p style="text-align: justify;">(v) Whether, on the facts and in the circumstances of the case, Tribunal was justified in directing the Assessing Officer to verify the claim and to allow it the payment of sales-tax, central sales-tax, and entry-tax has been made before filing the returns under s. 139(1) even when the proviso was introduced w.e.f. 1st April, 1988, and not for the earlier years </p><p style="text-align: justify;">(vi) Whether, on the facts and in the circumstances of the case, Tribunal was justified in deleting the penalty amounting to Rs. 1,30,000 on the ground that the foundation of levy of penalty does stand even when the Department has not accepted the same ?'</p><p style="text-align: justify;">2. We have heard learned senior standing counsel for the Revenue. The assessee involved in these case is a co-operative society. The assessment years are during the period 1981 to 1985. Questions 1 and 2 are practically a repetition of the same question. Question No. 4 is a repetition of question No. 3. Therefore, the question No. 4 is deleted. Questions 5 and 6 are renumbered as question Nos. 4 and 5.</p><p style="text-align: justify;">3. The assessee is a co-operative society whose members are cotton growers. The society has been established to help the members in the matter of ginning and pressing cotton and finding market for the processed cotton. The society charges fee for ginning and pressing and also collects a fee for assessing the marketing operations from members. The society contended that it is engaged in marketing of agricultural produce of its members and also processing the agricultural produce of its members and, therefore, it is entitled for deduction of the whole of amount of profit and gains of business attributable to such activities from the assessable income under s. 80P(2) of the Act. The Assessing Officer (AO) negatived this claim on the ground that s. 80P(2)(v) can be invoked only where the processing is done without the aid of power and since processing is done by the assessee with the aid of power, deduction cannot be granted. The appellate authority and the Tribunal took the view that deduction has to be granted under s. 80P(2)(iii) of the Act since the society is engaged in marketing of agricultural produce of its members. It is this decision which has given rise to question Nos. 1 and 2. Question No. 3 is incidental to the answers to question Nos. 1 and 2.</p><p style="text-align: justify;">4. Sec. 43B of the Act states, inter alia, that where sales-tax, central sales-tax and entry-tax is alleged to be paid, deduction is to be given only on actual payment and not on the basis of subsistence of liability. The AO held that payment is not proved and deleted deduction. Tribunal directed him to enquire under the question as to what extent payment has been made and to give deduction to the actual payment made. This decision has led to question No. 4. Question No. 5 is incidental to the answers to other questions.</p><p style="text-align: justify;">5. The order of the Tribunal makes it abundantly clear that deduction is granted in regard to profits from the ginning and pressing operation only because the society is engaged in marketing of agricultural produce of its members. This is under s. 80P(2)(iii) of the Act. The condition that processing shall be done without the aid of the power, seen in sub-cl. (v), is not a condition precedent with reference to sub-cl. (iii). This matter has been clarified by the Supreme Court with reference to the provisions of the Act as they stood prior to 1968 amendment [see Broach Distt. Co-operative Cotton Sales Ginning & Pressing Society Ltd. vs . CIT : [1989]177ITR418(SC) ]. In regard to the controversy arising in these cases, the amendment has not made any practical difference. The question is, therefore, covered by the decision of the Supreme Court and cannot be said to arise.</p><p style="text-align: justify;">6. The Tribunal has not granted deduction to the assessee under s. 43B of the Act in regard to the alleged payments of sales-tax, central sales-tax and entry-tax. The Tribunal only directed the AO to verify whether payment has been made and if satisfied to grant deduction. This part of the decision of the Tribunal cannot be said to have given rise to any question of law. Other questions are incidental to the alleged main questions and do not require independent consideration.</p><p style="text-align: justify;">7. For the reasons indicated above, we hold that no question of law calling for stating the case and making a reference arises for consideration in these cases. Applications are accordingly dismissed.<p style="text-align: justify;"></p><p style="text-align: justify;">', 'observations' => null, 'overruledby' => null, 'prhistory' => '', 'pubs' => '(1996)130CTR(MP)431', 'ratiodecidendi' => '', 'respondent' => 'Co-operative Processing and Marketing Society.', 'sub' => 'Direct Taxation', 'link' => null, 'circuit' => null ) ), 'casename_url' => 'commissioner-income-tax-vs-operative-processing', 'args' => array( (int) 0 => '510422', (int) 1 => 'commissioner-income-tax-vs-operative-processing' ) ) $title_for_layout = 'Commissioner of Income Tax Vs Co Operative Processing and Marketing Society - Citation 510422 - Court Judgment | ' $desc = array( 'Judgement' => array( 'id' => '510422', 'acts' => '', 'appealno' => 'MCC No. 563 of 1995 & other connected cases, 27th September, 1995', 'appellant' => 'Commissioner of Income Tax', 'authreffered' => '', 'casename' => 'Commissioner of Income Tax Vs. Co-operative Processing and Marketing Society.', 'casenote' => ' - CONSTITUTION OF INDIA 1055. Article 141; [A.K. Patnaik, C.J., Dipak Misra, Abhay Gohil, S. Samvatsar, & S.K. Gangele, JJ] Dismissal of SLP arising from decision of High Court Whether binding precedent Decision of Division Bench in Rama and Company v. State of Madhya Pradesh, [2007(II) MPJR 229] overruled by Full Bench of same High Court Prior to delivery of decision of Full Bench order passed in Division Bench decision assailed in SLP before Supreme Court Dismissal of SLP by short reasoned order, though declaration of law, but High Court is bound to follow earlier decisions in field regard being had to concept of precedents as per law laid down by Apex Court and Larger bench decision in Jabalpur Bus Operators Association, reported in [2003(1) MPJR 158]. Court clarifies that Dr. Jaidev Siddha v. Jaiprakash Siddha, 2007(2) MPJR (FB) 361; AIR 2007 MP 269 (FB) is not impliedly overruled in view of dismissal of SLP Articles 226 & 227; [A.K. Patnaik, C.J., Dipak Misra, Abhay Gohil, S. Samvatsar, & S.K. Gangele, JJ] Power to issue writ under Article 226 - [per Majority] The High Courts exercise original jurisdiction under Article 226 of the Constitution and supervisory jurisdiction and the power of superintendence under Article 227 of the Constitution. But, an eloquent and fertile one, a writ of certiorari is issued in exercise of original jurisdiction. Whenever word supervisory has been used in the context of Article 226 it is in contrast with the appellate or revisional jurisdiction. When a writ is issued under Article 226 of the Constitution in respect of Courts or tribunals it is done in exercise of original jurisdiction and the parameters are different than Article 227 of the Constitution of India. It is worth noting that the power under Article 227 was there in a different manner under the Government of India Act. Power of superintendence is distinct from the exercise of power of revisional or supervisory jurisdiction which is a facet of the power of superintendence. The confusion occurs when one applies the principle of equivalence or equates the exercise of supervisory power and power of superintendence with original or supervisory jurisdiction. There is an acceptable nuance between the concept of jurisdiction and exercise of power by certain parameters. Both do come within the fundamental concept of judicial review but the jurisdiction exercised is different when under Article 226 a writ is issued it is issued in exercise of original jurisdiction whether against a tribunal or inferior Courts or administrative authorities. The word superintendence has not been used in Article 226 of the Constitution. It is also evident that the term writs is not referred to in Article 227. On a scrutiny of Article 227 it would be crystal clear that power of superintendence conferred on the High Courts is a power that is restricted to the Courts and tribunal in relation to which it exercises jurisdiction. On the contrary the power conferred on the High Court under Article 226 is not constricted and confined to the Courts and tribunals but it extends to any person or authority. Be it noted, Article 226 as has been engrafted in the Constitution covers entirely a new area, a broader one in a larger spectrum. When the Legislature has used the terms in exercise of original jurisdiction and supervisory jurisdiction it has to be understood that they are used in contradistinction in the constitutional context as has been interpreted by the Apex Court. The words of the Section have to be understood to mean exercise of powers under Article 226 of the Constitution of India which is always original. -- M.P. SAMAJ KE KAMJOR VARGON KE KRISHI BHUMI HADAPNE SAMBANDHI KUCHAKRON SE PARITRAN TATHA MUKTI ADHINIYAM [3/1977]. Section 2: Writ appeal Maintainability from order of single Judge-When permissible Held, Maintainability of a writ appeal from an order of the learned single Judge would depend upon many an aspect and cannot be put into a strait jacket formula. It cannot be stated with mathematical exactitude. It would depend upon the pleadings in the writ petition, nature of the order passed by the single Judge, character and the contour of the order, directions issued, nomenclature given and the jurisdictional prospective in the constitutional context are to be perceived. It cannot be said in a hyper-technical manner that an order passed in a writ petition, if there is assail to the order emerging from the inferior tribunal or subordinate Courts has to be treated all the time for all purposes to be under Article 227 of the Constitution of India. It would depend upon the real nature of the order passed by the learned single Judge. The pleadings also assume immense significance. It would not be an over emphasis to state that an order in a writ petition can fit into the subtle contour of Articles 226 and 227 of the Constitution in a composite manner and they can co-inside, co-exist, overlap or imbricate. In this context it is apt to note that there may be cases where the single Judge may feel disposed or inclined to issue a writ to do full and complete justice because it is to be borne in mind that Article 226 of the Constitution is fundamentally a repository and reservoir of justice based on equity and good conscience. It will depend upon factual matrix of each case. Dr. Jaidev Siddha v. Jaiprakash Siddha, 2007(2) MPJR (FB) 361: AIR 2007 MP 269 (FB) is not impliedly overruled in view of dismissal of SLP preferred against order reported in Rama and Company v. State of Madhya Pradesh [2007 (2) MPJR 229 (DB) (MP)]. - The Tribunal only directed the AO to verify whether payment has been made and if satisfied to grant deduction.', 'caseanalysis' => null, 'casesref' => '', 'citingcases' => '', 'counselplain' => '', 'counseldef' => '', 'court' => 'Madhya Pradesh', 'court_type' => 'HC', 'decidedon' => '1995-09-27', 'deposition' => '', 'favorof' => null, 'findings' => null, 'judge' => '', 'judgement' => 'ORDER<p>BY THE COURT :</p><p>These are applications filed by the Revenue under s. 256(2) of the IT Act, 1961, for stating the case and to make reference of the following common questions :</p><p>'(i) Whether, on the facts and in the circumstances of the case, the Tribunal was justified in holding that ginning and pressing charges received from the members is allowable as an exemption though it was with the aid of power ?</p><p>(ii) Whether, on the facts and in the circumstances of the case, the Tribunal was justified in holding that the claim of the assessee though not admissible within the provisions of s. 80P(2)(v) but is admissible under s. 80P(2)(a)(iii) </p><p>(iii) Whether, on the facts and in the circumstances of the case, the Tribunal was justified in deleting interest under s. 217 </p><p>(iv) Whether, on the facts and in the circumstances of the case, the Tribunal was justified in deleting interest under s. 217 </p><p>(v) Whether, on the facts and in the circumstances of the case, Tribunal was justified in directing the Assessing Officer to verify the claim and to allow it the payment of sales-tax, central sales-tax, and entry-tax has been made before filing the returns under s. 139(1) even when the proviso was introduced w.e.f. 1st April, 1988, and not for the earlier years </p><p>(vi) Whether, on the facts and in the circumstances of the case, Tribunal was justified in deleting the penalty amounting to Rs. 1,30,000 on the ground that the foundation of levy of penalty does stand even when the Department has not accepted the same ?'</p><p>2. We have heard learned senior standing counsel for the Revenue. The assessee involved in these case is a co-operative society. The assessment years are during the period 1981 to 1985. Questions 1 and 2 are practically a repetition of the same question. Question No. 4 is a repetition of question No. 3. Therefore, the question No. 4 is deleted. Questions 5 and 6 are renumbered as question Nos. 4 and 5.</p><p>3. The assessee is a co-operative society whose members are cotton growers. The society has been established to help the members in the matter of ginning and pressing cotton and finding market for the processed cotton. The society charges fee for ginning and pressing and also collects a fee for assessing the marketing operations from members. The society contended that it is engaged in marketing of agricultural produce of its members and also processing the agricultural produce of its members and, therefore, it is entitled for deduction of the whole of amount of profit and gains of business attributable to such activities from the assessable income under s. 80P(2) of the Act. The Assessing Officer (AO) negatived this claim on the ground that s. 80P(2)(v) can be invoked only where the processing is done without the aid of power and since processing is done by the assessee with the aid of power, deduction cannot be granted. The appellate authority and the Tribunal took the view that deduction has to be granted under s. 80P(2)(iii) of the Act since the society is engaged in marketing of agricultural produce of its members. It is this decision which has given rise to question Nos. 1 and 2. Question No. 3 is incidental to the answers to question Nos. 1 and 2.</p><p>4. Sec. 43B of the Act states, inter alia, that where sales-tax, central sales-tax and entry-tax is alleged to be paid, deduction is to be given only on actual payment and not on the basis of subsistence of liability. The AO held that payment is not proved and deleted deduction. Tribunal directed him to enquire under the question as to what extent payment has been made and to give deduction to the actual payment made. This decision has led to question No. 4. Question No. 5 is incidental to the answers to other questions.</p><p>5. The order of the Tribunal makes it abundantly clear that deduction is granted in regard to profits from the ginning and pressing operation only because the society is engaged in marketing of agricultural produce of its members. This is under s. 80P(2)(iii) of the Act. The condition that processing shall be done without the aid of the power, seen in sub-cl. (v), is not a condition precedent with reference to sub-cl. (iii). This matter has been clarified by the Supreme Court with reference to the provisions of the Act as they stood prior to 1968 amendment [see Broach Distt. Co-operative Cotton Sales Ginning & Pressing Society Ltd. vs . CIT : [1989]177ITR418(SC) ]. In regard to the controversy arising in these cases, the amendment has not made any practical difference. The question is, therefore, covered by the decision of the Supreme Court and cannot be said to arise.</p><p>6. The Tribunal has not granted deduction to the assessee under s. 43B of the Act in regard to the alleged payments of sales-tax, central sales-tax and entry-tax. The Tribunal only directed the AO to verify whether payment has been made and if satisfied to grant deduction. This part of the decision of the Tribunal cannot be said to have given rise to any question of law. Other questions are incidental to the alleged main questions and do not require independent consideration.</p><p>7. For the reasons indicated above, we hold that no question of law calling for stating the case and making a reference arises for consideration in these cases. Applications are accordingly dismissed.<p></p><p>', 'observations' => null, 'overruledby' => null, 'prhistory' => '', 'pubs' => '(1996)130CTR(MP)431', 'ratiodecidendi' => '', 'respondent' => 'Co-operative Processing and Marketing Society.', 'sub' => 'Direct Taxation', 'link' => null, 'circuit' => null ) ) $casename_url = 'commissioner-income-tax-vs-operative-processing' $args = array( (int) 0 => '510422', (int) 1 => 'commissioner-income-tax-vs-operative-processing' ) $url = 'https://sooperkanoon.com/case/amp/510422/commissioner-income-tax-vs-operative-processing' $ctype = ' High Court'include - APP/View/Case/amp.ctp, line 123 View::_evaluate() - CORE/Cake/View/View.php, line 971 View::_render() - CORE/Cake/View/View.php, line 933 View::render() - CORE/Cake/View/View.php, line 473 Controller::render() - CORE/Cake/Controller/Controller.php, line 963 Dispatcher::_invoke() - CORE/Cake/Routing/Dispatcher.php, line 200 Dispatcher::dispatch() - CORE/Cake/Routing/Dispatcher.php, line 167 [main] - APP/webroot/index.php, line 109
Notice (8): Undefined variable: query [APP/View/Case/amp.ctp, line 123]orderby the court :these are applications filed by the revenue under s. 256(2) of the it act, 1961, for stating the case and to make reference of the following common questions :'(i) whether, on the facts and in the circumstances of the case, the tribunal was justified in holding that ginning and pressing charges received from the members is allowable as an exemption though it was with the aid of power ?(ii) whether, on the facts and in the circumstances of the case, the tribunal was justified in holding that the claim of the assessee though not admissible within the provisions of s. 80p(2)(v) but is admissible under s. 80p(2)(a)(iii) (iii) whether, on the facts and in the circumstances of the case, the tribunal was justified in deleting interest under s. 217 (iv) whether, on the facts.....Code Context}//highest occurence of word in the judgementecho $this->Wand->highlight($this->Excerpt->extractRelevant($kword,strtolower(strip_tags($desc['Judgement']['judgement']))), $query) . "</div>";$viewFile = '/home/legalcrystal/app/View/Case/amp.ctp' $dataForView = array( 'title_for_layout' => 'Commissioner of Income Tax Vs Co Operative Processing and Marketing Society - Citation 510422 - Court Judgment | ', 'desc' => array( 'Judgement' => array( 'id' => '510422', 'acts' => '', 'appealno' => 'MCC No. 563 of 1995 & other connected cases, 27th September, 1995', 'appellant' => 'Commissioner of Income Tax', 'authreffered' => '', 'casename' => 'Commissioner of Income Tax Vs. Co-operative Processing and Marketing Society.', 'casenote' => ' - CONSTITUTION OF INDIA 1055. Article 141; [A.K. Patnaik, C.J., Dipak Misra, Abhay Gohil, S. Samvatsar, & S.K. Gangele, JJ] Dismissal of SLP arising from decision of High Court Whether binding precedent Decision of Division Bench in Rama and Company v. State of Madhya Pradesh, [2007(II) MPJR 229] overruled by Full Bench of same High Court Prior to delivery of decision of Full Bench order passed in Division Bench decision assailed in SLP before Supreme Court Dismissal of SLP by short reasoned order, though declaration of law, but High Court is bound to follow earlier decisions in field regard being had to concept of precedents as per law laid down by Apex Court and Larger bench decision in Jabalpur Bus Operators Association, reported in [2003(1) MPJR 158]. Court clarifies that Dr. Jaidev Siddha v. Jaiprakash Siddha, 2007(2) MPJR (FB) 361; AIR 2007 MP 269 (FB) is not impliedly overruled in view of dismissal of SLP Articles 226 & 227; [A.K. Patnaik, C.J., Dipak Misra, Abhay Gohil, S. Samvatsar, & S.K. Gangele, JJ] Power to issue writ under Article 226 - [per Majority] The High Courts exercise original jurisdiction under Article 226 of the Constitution and supervisory jurisdiction and the power of superintendence under Article 227 of the Constitution. But, an eloquent and fertile one, a writ of certiorari is issued in exercise of original jurisdiction. Whenever word supervisory has been used in the context of Article 226 it is in contrast with the appellate or revisional jurisdiction. When a writ is issued under Article 226 of the Constitution in respect of Courts or tribunals it is done in exercise of original jurisdiction and the parameters are different than Article 227 of the Constitution of India. It is worth noting that the power under Article 227 was there in a different manner under the Government of India Act. Power of superintendence is distinct from the exercise of power of revisional or supervisory jurisdiction which is a facet of the power of superintendence. The confusion occurs when one applies the principle of equivalence or equates the exercise of supervisory power and power of superintendence with original or supervisory jurisdiction. There is an acceptable nuance between the concept of jurisdiction and exercise of power by certain parameters. Both do come within the fundamental concept of judicial review but the jurisdiction exercised is different when under Article 226 a writ is issued it is issued in exercise of original jurisdiction whether against a tribunal or inferior Courts or administrative authorities. The word superintendence has not been used in Article 226 of the Constitution. It is also evident that the term writs is not referred to in Article 227. On a scrutiny of Article 227 it would be crystal clear that power of superintendence conferred on the High Courts is a power that is restricted to the Courts and tribunal in relation to which it exercises jurisdiction. On the contrary the power conferred on the High Court under Article 226 is not constricted and confined to the Courts and tribunals but it extends to any person or authority. Be it noted, Article 226 as has been engrafted in the Constitution covers entirely a new area, a broader one in a larger spectrum. When the Legislature has used the terms in exercise of original jurisdiction and supervisory jurisdiction it has to be understood that they are used in contradistinction in the constitutional context as has been interpreted by the Apex Court. The words of the Section have to be understood to mean exercise of powers under Article 226 of the Constitution of India which is always original. -- M.P. SAMAJ KE KAMJOR VARGON KE KRISHI BHUMI HADAPNE SAMBANDHI KUCHAKRON SE PARITRAN TATHA MUKTI ADHINIYAM [3/1977]. Section 2: Writ appeal Maintainability from order of single Judge-When permissible Held, Maintainability of a writ appeal from an order of the learned single Judge would depend upon many an aspect and cannot be put into a strait jacket formula. It cannot be stated with mathematical exactitude. It would depend upon the pleadings in the writ petition, nature of the order passed by the single Judge, character and the contour of the order, directions issued, nomenclature given and the jurisdictional prospective in the constitutional context are to be perceived. It cannot be said in a hyper-technical manner that an order passed in a writ petition, if there is assail to the order emerging from the inferior tribunal or subordinate Courts has to be treated all the time for all purposes to be under Article 227 of the Constitution of India. It would depend upon the real nature of the order passed by the learned single Judge. The pleadings also assume immense significance. It would not be an over emphasis to state that an order in a writ petition can fit into the subtle contour of Articles 226 and 227 of the Constitution in a composite manner and they can co-inside, co-exist, overlap or imbricate. In this context it is apt to note that there may be cases where the single Judge may feel disposed or inclined to issue a writ to do full and complete justice because it is to be borne in mind that Article 226 of the Constitution is fundamentally a repository and reservoir of justice based on equity and good conscience. It will depend upon factual matrix of each case. Dr. Jaidev Siddha v. Jaiprakash Siddha, 2007(2) MPJR (FB) 361: AIR 2007 MP 269 (FB) is not impliedly overruled in view of dismissal of SLP preferred against order reported in Rama and Company v. State of Madhya Pradesh [2007 (2) MPJR 229 (DB) (MP)]. - The Tribunal only directed the AO to verify whether payment has been made and if satisfied to grant deduction.', 'caseanalysis' => null, 'casesref' => '', 'citingcases' => '', 'counselplain' => '', 'counseldef' => '', 'court' => 'Madhya Pradesh', 'court_type' => 'HC', 'decidedon' => '1995-09-27', 'deposition' => '', 'favorof' => null, 'findings' => null, 'judge' => '', 'judgement' => 'ORDER<p style="text-align: justify;">BY THE COURT :</p><p style="text-align: justify;">These are applications filed by the Revenue under s. 256(2) of the IT Act, 1961, for stating the case and to make reference of the following common questions :</p><p style="text-align: justify;">'(i) Whether, on the facts and in the circumstances of the case, the Tribunal was justified in holding that ginning and pressing charges received from the members is allowable as an exemption though it was with the aid of power ?</p><p style="text-align: justify;">(ii) Whether, on the facts and in the circumstances of the case, the Tribunal was justified in holding that the claim of the assessee though not admissible within the provisions of s. 80P(2)(v) but is admissible under s. 80P(2)(a)(iii) </p><p style="text-align: justify;">(iii) Whether, on the facts and in the circumstances of the case, the Tribunal was justified in deleting interest under s. 217 </p><p style="text-align: justify;">(iv) Whether, on the facts and in the circumstances of the case, the Tribunal was justified in deleting interest under s. 217 </p><p style="text-align: justify;">(v) Whether, on the facts and in the circumstances of the case, Tribunal was justified in directing the Assessing Officer to verify the claim and to allow it the payment of sales-tax, central sales-tax, and entry-tax has been made before filing the returns under s. 139(1) even when the proviso was introduced w.e.f. 1st April, 1988, and not for the earlier years </p><p style="text-align: justify;">(vi) Whether, on the facts and in the circumstances of the case, Tribunal was justified in deleting the penalty amounting to Rs. 1,30,000 on the ground that the foundation of levy of penalty does stand even when the Department has not accepted the same ?'</p><p style="text-align: justify;">2. We have heard learned senior standing counsel for the Revenue. The assessee involved in these case is a co-operative society. The assessment years are during the period 1981 to 1985. Questions 1 and 2 are practically a repetition of the same question. Question No. 4 is a repetition of question No. 3. Therefore, the question No. 4 is deleted. Questions 5 and 6 are renumbered as question Nos. 4 and 5.</p><p style="text-align: justify;">3. The assessee is a co-operative society whose members are cotton growers. The society has been established to help the members in the matter of ginning and pressing cotton and finding market for the processed cotton. The society charges fee for ginning and pressing and also collects a fee for assessing the marketing operations from members. The society contended that it is engaged in marketing of agricultural produce of its members and also processing the agricultural produce of its members and, therefore, it is entitled for deduction of the whole of amount of profit and gains of business attributable to such activities from the assessable income under s. 80P(2) of the Act. The Assessing Officer (AO) negatived this claim on the ground that s. 80P(2)(v) can be invoked only where the processing is done without the aid of power and since processing is done by the assessee with the aid of power, deduction cannot be granted. The appellate authority and the Tribunal took the view that deduction has to be granted under s. 80P(2)(iii) of the Act since the society is engaged in marketing of agricultural produce of its members. It is this decision which has given rise to question Nos. 1 and 2. Question No. 3 is incidental to the answers to question Nos. 1 and 2.</p><p style="text-align: justify;">4. Sec. 43B of the Act states, inter alia, that where sales-tax, central sales-tax and entry-tax is alleged to be paid, deduction is to be given only on actual payment and not on the basis of subsistence of liability. The AO held that payment is not proved and deleted deduction. Tribunal directed him to enquire under the question as to what extent payment has been made and to give deduction to the actual payment made. This decision has led to question No. 4. Question No. 5 is incidental to the answers to other questions.</p><p style="text-align: justify;">5. The order of the Tribunal makes it abundantly clear that deduction is granted in regard to profits from the ginning and pressing operation only because the society is engaged in marketing of agricultural produce of its members. This is under s. 80P(2)(iii) of the Act. The condition that processing shall be done without the aid of the power, seen in sub-cl. (v), is not a condition precedent with reference to sub-cl. (iii). This matter has been clarified by the Supreme Court with reference to the provisions of the Act as they stood prior to 1968 amendment [see Broach Distt. Co-operative Cotton Sales Ginning & Pressing Society Ltd. vs . CIT : [1989]177ITR418(SC) ]. In regard to the controversy arising in these cases, the amendment has not made any practical difference. The question is, therefore, covered by the decision of the Supreme Court and cannot be said to arise.</p><p style="text-align: justify;">6. The Tribunal has not granted deduction to the assessee under s. 43B of the Act in regard to the alleged payments of sales-tax, central sales-tax and entry-tax. The Tribunal only directed the AO to verify whether payment has been made and if satisfied to grant deduction. This part of the decision of the Tribunal cannot be said to have given rise to any question of law. Other questions are incidental to the alleged main questions and do not require independent consideration.</p><p style="text-align: justify;">7. For the reasons indicated above, we hold that no question of law calling for stating the case and making a reference arises for consideration in these cases. Applications are accordingly dismissed.<p style="text-align: justify;"></p><p style="text-align: justify;">', 'observations' => null, 'overruledby' => null, 'prhistory' => '', 'pubs' => '(1996)130CTR(MP)431', 'ratiodecidendi' => '', 'respondent' => 'Co-operative Processing and Marketing Society.', 'sub' => 'Direct Taxation', 'link' => null, 'circuit' => null ) ), 'casename_url' => 'commissioner-income-tax-vs-operative-processing', 'args' => array( (int) 0 => '510422', (int) 1 => 'commissioner-income-tax-vs-operative-processing' ) ) $title_for_layout = 'Commissioner of Income Tax Vs Co Operative Processing and Marketing Society - Citation 510422 - Court Judgment | ' $desc = array( 'Judgement' => array( 'id' => '510422', 'acts' => '', 'appealno' => 'MCC No. 563 of 1995 & other connected cases, 27th September, 1995', 'appellant' => 'Commissioner of Income Tax', 'authreffered' => '', 'casename' => 'Commissioner of Income Tax Vs. Co-operative Processing and Marketing Society.', 'casenote' => ' - CONSTITUTION OF INDIA 1055. Article 141; [A.K. Patnaik, C.J., Dipak Misra, Abhay Gohil, S. Samvatsar, & S.K. Gangele, JJ] Dismissal of SLP arising from decision of High Court Whether binding precedent Decision of Division Bench in Rama and Company v. State of Madhya Pradesh, [2007(II) MPJR 229] overruled by Full Bench of same High Court Prior to delivery of decision of Full Bench order passed in Division Bench decision assailed in SLP before Supreme Court Dismissal of SLP by short reasoned order, though declaration of law, but High Court is bound to follow earlier decisions in field regard being had to concept of precedents as per law laid down by Apex Court and Larger bench decision in Jabalpur Bus Operators Association, reported in [2003(1) MPJR 158]. Court clarifies that Dr. Jaidev Siddha v. Jaiprakash Siddha, 2007(2) MPJR (FB) 361; AIR 2007 MP 269 (FB) is not impliedly overruled in view of dismissal of SLP Articles 226 & 227; [A.K. Patnaik, C.J., Dipak Misra, Abhay Gohil, S. Samvatsar, & S.K. Gangele, JJ] Power to issue writ under Article 226 - [per Majority] The High Courts exercise original jurisdiction under Article 226 of the Constitution and supervisory jurisdiction and the power of superintendence under Article 227 of the Constitution. But, an eloquent and fertile one, a writ of certiorari is issued in exercise of original jurisdiction. Whenever word supervisory has been used in the context of Article 226 it is in contrast with the appellate or revisional jurisdiction. When a writ is issued under Article 226 of the Constitution in respect of Courts or tribunals it is done in exercise of original jurisdiction and the parameters are different than Article 227 of the Constitution of India. It is worth noting that the power under Article 227 was there in a different manner under the Government of India Act. Power of superintendence is distinct from the exercise of power of revisional or supervisory jurisdiction which is a facet of the power of superintendence. The confusion occurs when one applies the principle of equivalence or equates the exercise of supervisory power and power of superintendence with original or supervisory jurisdiction. There is an acceptable nuance between the concept of jurisdiction and exercise of power by certain parameters. Both do come within the fundamental concept of judicial review but the jurisdiction exercised is different when under Article 226 a writ is issued it is issued in exercise of original jurisdiction whether against a tribunal or inferior Courts or administrative authorities. The word superintendence has not been used in Article 226 of the Constitution. It is also evident that the term writs is not referred to in Article 227. On a scrutiny of Article 227 it would be crystal clear that power of superintendence conferred on the High Courts is a power that is restricted to the Courts and tribunal in relation to which it exercises jurisdiction. On the contrary the power conferred on the High Court under Article 226 is not constricted and confined to the Courts and tribunals but it extends to any person or authority. Be it noted, Article 226 as has been engrafted in the Constitution covers entirely a new area, a broader one in a larger spectrum. When the Legislature has used the terms in exercise of original jurisdiction and supervisory jurisdiction it has to be understood that they are used in contradistinction in the constitutional context as has been interpreted by the Apex Court. The words of the Section have to be understood to mean exercise of powers under Article 226 of the Constitution of India which is always original. -- M.P. SAMAJ KE KAMJOR VARGON KE KRISHI BHUMI HADAPNE SAMBANDHI KUCHAKRON SE PARITRAN TATHA MUKTI ADHINIYAM [3/1977]. Section 2: Writ appeal Maintainability from order of single Judge-When permissible Held, Maintainability of a writ appeal from an order of the learned single Judge would depend upon many an aspect and cannot be put into a strait jacket formula. It cannot be stated with mathematical exactitude. It would depend upon the pleadings in the writ petition, nature of the order passed by the single Judge, character and the contour of the order, directions issued, nomenclature given and the jurisdictional prospective in the constitutional context are to be perceived. It cannot be said in a hyper-technical manner that an order passed in a writ petition, if there is assail to the order emerging from the inferior tribunal or subordinate Courts has to be treated all the time for all purposes to be under Article 227 of the Constitution of India. It would depend upon the real nature of the order passed by the learned single Judge. The pleadings also assume immense significance. It would not be an over emphasis to state that an order in a writ petition can fit into the subtle contour of Articles 226 and 227 of the Constitution in a composite manner and they can co-inside, co-exist, overlap or imbricate. In this context it is apt to note that there may be cases where the single Judge may feel disposed or inclined to issue a writ to do full and complete justice because it is to be borne in mind that Article 226 of the Constitution is fundamentally a repository and reservoir of justice based on equity and good conscience. It will depend upon factual matrix of each case. Dr. Jaidev Siddha v. Jaiprakash Siddha, 2007(2) MPJR (FB) 361: AIR 2007 MP 269 (FB) is not impliedly overruled in view of dismissal of SLP preferred against order reported in Rama and Company v. State of Madhya Pradesh [2007 (2) MPJR 229 (DB) (MP)]. - The Tribunal only directed the AO to verify whether payment has been made and if satisfied to grant deduction.', 'caseanalysis' => null, 'casesref' => '', 'citingcases' => '', 'counselplain' => '', 'counseldef' => '', 'court' => 'Madhya Pradesh', 'court_type' => 'HC', 'decidedon' => '1995-09-27', 'deposition' => '', 'favorof' => null, 'findings' => null, 'judge' => '', 'judgement' => 'ORDER<p>BY THE COURT :</p><p>These are applications filed by the Revenue under s. 256(2) of the IT Act, 1961, for stating the case and to make reference of the following common questions :</p><p>'(i) Whether, on the facts and in the circumstances of the case, the Tribunal was justified in holding that ginning and pressing charges received from the members is allowable as an exemption though it was with the aid of power ?</p><p>(ii) Whether, on the facts and in the circumstances of the case, the Tribunal was justified in holding that the claim of the assessee though not admissible within the provisions of s. 80P(2)(v) but is admissible under s. 80P(2)(a)(iii) </p><p>(iii) Whether, on the facts and in the circumstances of the case, the Tribunal was justified in deleting interest under s. 217 </p><p>(iv) Whether, on the facts and in the circumstances of the case, the Tribunal was justified in deleting interest under s. 217 </p><p>(v) Whether, on the facts and in the circumstances of the case, Tribunal was justified in directing the Assessing Officer to verify the claim and to allow it the payment of sales-tax, central sales-tax, and entry-tax has been made before filing the returns under s. 139(1) even when the proviso was introduced w.e.f. 1st April, 1988, and not for the earlier years </p><p>(vi) Whether, on the facts and in the circumstances of the case, Tribunal was justified in deleting the penalty amounting to Rs. 1,30,000 on the ground that the foundation of levy of penalty does stand even when the Department has not accepted the same ?'</p><p>2. We have heard learned senior standing counsel for the Revenue. The assessee involved in these case is a co-operative society. The assessment years are during the period 1981 to 1985. Questions 1 and 2 are practically a repetition of the same question. Question No. 4 is a repetition of question No. 3. Therefore, the question No. 4 is deleted. Questions 5 and 6 are renumbered as question Nos. 4 and 5.</p><p>3. The assessee is a co-operative society whose members are cotton growers. The society has been established to help the members in the matter of ginning and pressing cotton and finding market for the processed cotton. The society charges fee for ginning and pressing and also collects a fee for assessing the marketing operations from members. The society contended that it is engaged in marketing of agricultural produce of its members and also processing the agricultural produce of its members and, therefore, it is entitled for deduction of the whole of amount of profit and gains of business attributable to such activities from the assessable income under s. 80P(2) of the Act. The Assessing Officer (AO) negatived this claim on the ground that s. 80P(2)(v) can be invoked only where the processing is done without the aid of power and since processing is done by the assessee with the aid of power, deduction cannot be granted. The appellate authority and the Tribunal took the view that deduction has to be granted under s. 80P(2)(iii) of the Act since the society is engaged in marketing of agricultural produce of its members. It is this decision which has given rise to question Nos. 1 and 2. Question No. 3 is incidental to the answers to question Nos. 1 and 2.</p><p>4. Sec. 43B of the Act states, inter alia, that where sales-tax, central sales-tax and entry-tax is alleged to be paid, deduction is to be given only on actual payment and not on the basis of subsistence of liability. The AO held that payment is not proved and deleted deduction. Tribunal directed him to enquire under the question as to what extent payment has been made and to give deduction to the actual payment made. This decision has led to question No. 4. Question No. 5 is incidental to the answers to other questions.</p><p>5. The order of the Tribunal makes it abundantly clear that deduction is granted in regard to profits from the ginning and pressing operation only because the society is engaged in marketing of agricultural produce of its members. This is under s. 80P(2)(iii) of the Act. The condition that processing shall be done without the aid of the power, seen in sub-cl. (v), is not a condition precedent with reference to sub-cl. (iii). This matter has been clarified by the Supreme Court with reference to the provisions of the Act as they stood prior to 1968 amendment [see Broach Distt. Co-operative Cotton Sales Ginning & Pressing Society Ltd. vs . CIT : [1989]177ITR418(SC) ]. In regard to the controversy arising in these cases, the amendment has not made any practical difference. The question is, therefore, covered by the decision of the Supreme Court and cannot be said to arise.</p><p>6. The Tribunal has not granted deduction to the assessee under s. 43B of the Act in regard to the alleged payments of sales-tax, central sales-tax and entry-tax. The Tribunal only directed the AO to verify whether payment has been made and if satisfied to grant deduction. This part of the decision of the Tribunal cannot be said to have given rise to any question of law. Other questions are incidental to the alleged main questions and do not require independent consideration.</p><p>7. For the reasons indicated above, we hold that no question of law calling for stating the case and making a reference arises for consideration in these cases. Applications are accordingly dismissed.<p></p><p>', 'observations' => null, 'overruledby' => null, 'prhistory' => '', 'pubs' => '(1996)130CTR(MP)431', 'ratiodecidendi' => '', 'respondent' => 'Co-operative Processing and Marketing Society.', 'sub' => 'Direct Taxation', 'link' => null, 'circuit' => null ) ) $casename_url = 'commissioner-income-tax-vs-operative-processing' $args = array( (int) 0 => '510422', (int) 1 => 'commissioner-income-tax-vs-operative-processing' ) $url = 'https://sooperkanoon.com/case/amp/510422/commissioner-income-tax-vs-operative-processing' $ctype = ' High Court'include - APP/View/Case/amp.ctp, line 123 View::_evaluate() - CORE/Cake/View/View.php, line 971 View::_render() - CORE/Cake/View/View.php, line 933 View::render() - CORE/Cake/View/View.php, line 473 Controller::render() - CORE/Cake/Controller/Controller.php, line 963 Dispatcher::_invoke() - CORE/Cake/Routing/Dispatcher.php, line 200 Dispatcher::dispatch() - CORE/Cake/Routing/Dispatcher.php, line 167 [main] - APP/webroot/index.php, line 109
Notice (8): Undefined variable: query [APP/View/Case/amp.ctp, line 144]ORDERCode Contextecho $this->Adsense->display('responsive_rect');}echo html_entity_decode($this->Wand->highlight($content[$i], $query));$viewFile = '/home/legalcrystal/app/View/Case/amp.ctp' $dataForView = array( 'title_for_layout' => 'Commissioner of Income Tax Vs Co Operative Processing and Marketing Society - Citation 510422 - Court Judgment | ', 'desc' => array( 'Judgement' => array( 'id' => '510422', 'acts' => '', 'appealno' => 'MCC No. 563 of 1995 & other connected cases, 27th September, 1995', 'appellant' => 'Commissioner of Income Tax', 'authreffered' => '', 'casename' => 'Commissioner of Income Tax Vs. Co-operative Processing and Marketing Society.', 'casenote' => ' - CONSTITUTION OF INDIA 1055. Article 141; [A.K. Patnaik, C.J., Dipak Misra, Abhay Gohil, S. Samvatsar, & S.K. Gangele, JJ] Dismissal of SLP arising from decision of High Court Whether binding precedent Decision of Division Bench in Rama and Company v. State of Madhya Pradesh, [2007(II) MPJR 229] overruled by Full Bench of same High Court Prior to delivery of decision of Full Bench order passed in Division Bench decision assailed in SLP before Supreme Court Dismissal of SLP by short reasoned order, though declaration of law, but High Court is bound to follow earlier decisions in field regard being had to concept of precedents as per law laid down by Apex Court and Larger bench decision in Jabalpur Bus Operators Association, reported in [2003(1) MPJR 158]. Court clarifies that Dr. Jaidev Siddha v. Jaiprakash Siddha, 2007(2) MPJR (FB) 361; AIR 2007 MP 269 (FB) is not impliedly overruled in view of dismissal of SLP Articles 226 & 227; [A.K. Patnaik, C.J., Dipak Misra, Abhay Gohil, S. Samvatsar, & S.K. Gangele, JJ] Power to issue writ under Article 226 - [per Majority] The High Courts exercise original jurisdiction under Article 226 of the Constitution and supervisory jurisdiction and the power of superintendence under Article 227 of the Constitution. But, an eloquent and fertile one, a writ of certiorari is issued in exercise of original jurisdiction. Whenever word supervisory has been used in the context of Article 226 it is in contrast with the appellate or revisional jurisdiction. When a writ is issued under Article 226 of the Constitution in respect of Courts or tribunals it is done in exercise of original jurisdiction and the parameters are different than Article 227 of the Constitution of India. It is worth noting that the power under Article 227 was there in a different manner under the Government of India Act. Power of superintendence is distinct from the exercise of power of revisional or supervisory jurisdiction which is a facet of the power of superintendence. The confusion occurs when one applies the principle of equivalence or equates the exercise of supervisory power and power of superintendence with original or supervisory jurisdiction. There is an acceptable nuance between the concept of jurisdiction and exercise of power by certain parameters. Both do come within the fundamental concept of judicial review but the jurisdiction exercised is different when under Article 226 a writ is issued it is issued in exercise of original jurisdiction whether against a tribunal or inferior Courts or administrative authorities. The word superintendence has not been used in Article 226 of the Constitution. It is also evident that the term writs is not referred to in Article 227. On a scrutiny of Article 227 it would be crystal clear that power of superintendence conferred on the High Courts is a power that is restricted to the Courts and tribunal in relation to which it exercises jurisdiction. On the contrary the power conferred on the High Court under Article 226 is not constricted and confined to the Courts and tribunals but it extends to any person or authority. Be it noted, Article 226 as has been engrafted in the Constitution covers entirely a new area, a broader one in a larger spectrum. When the Legislature has used the terms in exercise of original jurisdiction and supervisory jurisdiction it has to be understood that they are used in contradistinction in the constitutional context as has been interpreted by the Apex Court. The words of the Section have to be understood to mean exercise of powers under Article 226 of the Constitution of India which is always original. -- M.P. SAMAJ KE KAMJOR VARGON KE KRISHI BHUMI HADAPNE SAMBANDHI KUCHAKRON SE PARITRAN TATHA MUKTI ADHINIYAM [3/1977]. Section 2: Writ appeal Maintainability from order of single Judge-When permissible Held, Maintainability of a writ appeal from an order of the learned single Judge would depend upon many an aspect and cannot be put into a strait jacket formula. It cannot be stated with mathematical exactitude. It would depend upon the pleadings in the writ petition, nature of the order passed by the single Judge, character and the contour of the order, directions issued, nomenclature given and the jurisdictional prospective in the constitutional context are to be perceived. It cannot be said in a hyper-technical manner that an order passed in a writ petition, if there is assail to the order emerging from the inferior tribunal or subordinate Courts has to be treated all the time for all purposes to be under Article 227 of the Constitution of India. It would depend upon the real nature of the order passed by the learned single Judge. The pleadings also assume immense significance. It would not be an over emphasis to state that an order in a writ petition can fit into the subtle contour of Articles 226 and 227 of the Constitution in a composite manner and they can co-inside, co-exist, overlap or imbricate. In this context it is apt to note that there may be cases where the single Judge may feel disposed or inclined to issue a writ to do full and complete justice because it is to be borne in mind that Article 226 of the Constitution is fundamentally a repository and reservoir of justice based on equity and good conscience. It will depend upon factual matrix of each case. Dr. Jaidev Siddha v. Jaiprakash Siddha, 2007(2) MPJR (FB) 361: AIR 2007 MP 269 (FB) is not impliedly overruled in view of dismissal of SLP preferred against order reported in Rama and Company v. State of Madhya Pradesh [2007 (2) MPJR 229 (DB) (MP)]. - The Tribunal only directed the AO to verify whether payment has been made and if satisfied to grant deduction.', 'caseanalysis' => null, 'casesref' => '', 'citingcases' => '', 'counselplain' => '', 'counseldef' => '', 'court' => 'Madhya Pradesh', 'court_type' => 'HC', 'decidedon' => '1995-09-27', 'deposition' => '', 'favorof' => null, 'findings' => null, 'judge' => '', 'judgement' => 'ORDER<p style="text-align: justify;">BY THE COURT :</p><p style="text-align: justify;">These are applications filed by the Revenue under s. 256(2) of the IT Act, 1961, for stating the case and to make reference of the following common questions :</p><p style="text-align: justify;">'(i) Whether, on the facts and in the circumstances of the case, the Tribunal was justified in holding that ginning and pressing charges received from the members is allowable as an exemption though it was with the aid of power ?</p><p style="text-align: justify;">(ii) Whether, on the facts and in the circumstances of the case, the Tribunal was justified in holding that the claim of the assessee though not admissible within the provisions of s. 80P(2)(v) but is admissible under s. 80P(2)(a)(iii) </p><p style="text-align: justify;">(iii) Whether, on the facts and in the circumstances of the case, the Tribunal was justified in deleting interest under s. 217 </p><p style="text-align: justify;">(iv) Whether, on the facts and in the circumstances of the case, the Tribunal was justified in deleting interest under s. 217 </p><p style="text-align: justify;">(v) Whether, on the facts and in the circumstances of the case, Tribunal was justified in directing the Assessing Officer to verify the claim and to allow it the payment of sales-tax, central sales-tax, and entry-tax has been made before filing the returns under s. 139(1) even when the proviso was introduced w.e.f. 1st April, 1988, and not for the earlier years </p><p style="text-align: justify;">(vi) Whether, on the facts and in the circumstances of the case, Tribunal was justified in deleting the penalty amounting to Rs. 1,30,000 on the ground that the foundation of levy of penalty does stand even when the Department has not accepted the same ?'</p><p style="text-align: justify;">2. We have heard learned senior standing counsel for the Revenue. The assessee involved in these case is a co-operative society. The assessment years are during the period 1981 to 1985. Questions 1 and 2 are practically a repetition of the same question. Question No. 4 is a repetition of question No. 3. Therefore, the question No. 4 is deleted. Questions 5 and 6 are renumbered as question Nos. 4 and 5.</p><p style="text-align: justify;">3. The assessee is a co-operative society whose members are cotton growers. The society has been established to help the members in the matter of ginning and pressing cotton and finding market for the processed cotton. The society charges fee for ginning and pressing and also collects a fee for assessing the marketing operations from members. The society contended that it is engaged in marketing of agricultural produce of its members and also processing the agricultural produce of its members and, therefore, it is entitled for deduction of the whole of amount of profit and gains of business attributable to such activities from the assessable income under s. 80P(2) of the Act. The Assessing Officer (AO) negatived this claim on the ground that s. 80P(2)(v) can be invoked only where the processing is done without the aid of power and since processing is done by the assessee with the aid of power, deduction cannot be granted. The appellate authority and the Tribunal took the view that deduction has to be granted under s. 80P(2)(iii) of the Act since the society is engaged in marketing of agricultural produce of its members. It is this decision which has given rise to question Nos. 1 and 2. Question No. 3 is incidental to the answers to question Nos. 1 and 2.</p><p style="text-align: justify;">4. Sec. 43B of the Act states, inter alia, that where sales-tax, central sales-tax and entry-tax is alleged to be paid, deduction is to be given only on actual payment and not on the basis of subsistence of liability. The AO held that payment is not proved and deleted deduction. Tribunal directed him to enquire under the question as to what extent payment has been made and to give deduction to the actual payment made. This decision has led to question No. 4. Question No. 5 is incidental to the answers to other questions.</p><p style="text-align: justify;">5. The order of the Tribunal makes it abundantly clear that deduction is granted in regard to profits from the ginning and pressing operation only because the society is engaged in marketing of agricultural produce of its members. This is under s. 80P(2)(iii) of the Act. The condition that processing shall be done without the aid of the power, seen in sub-cl. (v), is not a condition precedent with reference to sub-cl. (iii). This matter has been clarified by the Supreme Court with reference to the provisions of the Act as they stood prior to 1968 amendment [see Broach Distt. Co-operative Cotton Sales Ginning & Pressing Society Ltd. vs . CIT : [1989]177ITR418(SC) ]. In regard to the controversy arising in these cases, the amendment has not made any practical difference. The question is, therefore, covered by the decision of the Supreme Court and cannot be said to arise.</p><p style="text-align: justify;">6. The Tribunal has not granted deduction to the assessee under s. 43B of the Act in regard to the alleged payments of sales-tax, central sales-tax and entry-tax. The Tribunal only directed the AO to verify whether payment has been made and if satisfied to grant deduction. This part of the decision of the Tribunal cannot be said to have given rise to any question of law. Other questions are incidental to the alleged main questions and do not require independent consideration.</p><p style="text-align: justify;">7. For the reasons indicated above, we hold that no question of law calling for stating the case and making a reference arises for consideration in these cases. Applications are accordingly dismissed.<p style="text-align: justify;"></p><p style="text-align: justify;">', 'observations' => null, 'overruledby' => null, 'prhistory' => '', 'pubs' => '(1996)130CTR(MP)431', 'ratiodecidendi' => '', 'respondent' => 'Co-operative Processing and Marketing Society.', 'sub' => 'Direct Taxation', 'link' => null, 'circuit' => null ) ), 'casename_url' => 'commissioner-income-tax-vs-operative-processing', 'args' => array( (int) 0 => '510422', (int) 1 => 'commissioner-income-tax-vs-operative-processing' ) ) $title_for_layout = 'Commissioner of Income Tax Vs Co Operative Processing and Marketing Society - Citation 510422 - Court Judgment | ' $desc = array( 'Judgement' => array( 'id' => '510422', 'acts' => '', 'appealno' => 'MCC No. 563 of 1995 & other connected cases, 27th September, 1995', 'appellant' => 'Commissioner of Income Tax', 'authreffered' => '', 'casename' => 'Commissioner of Income Tax Vs. Co-operative Processing and Marketing Society.', 'casenote' => ' - CONSTITUTION OF INDIA 1055. Article 141; [A.K. Patnaik, C.J., Dipak Misra, Abhay Gohil, S. Samvatsar, & S.K. Gangele, JJ] Dismissal of SLP arising from decision of High Court Whether binding precedent Decision of Division Bench in Rama and Company v. State of Madhya Pradesh, [2007(II) MPJR 229] overruled by Full Bench of same High Court Prior to delivery of decision of Full Bench order passed in Division Bench decision assailed in SLP before Supreme Court Dismissal of SLP by short reasoned order, though declaration of law, but High Court is bound to follow earlier decisions in field regard being had to concept of precedents as per law laid down by Apex Court and Larger bench decision in Jabalpur Bus Operators Association, reported in [2003(1) MPJR 158]. Court clarifies that Dr. Jaidev Siddha v. Jaiprakash Siddha, 2007(2) MPJR (FB) 361; AIR 2007 MP 269 (FB) is not impliedly overruled in view of dismissal of SLP Articles 226 & 227; [A.K. Patnaik, C.J., Dipak Misra, Abhay Gohil, S. Samvatsar, & S.K. Gangele, JJ] Power to issue writ under Article 226 - [per Majority] The High Courts exercise original jurisdiction under Article 226 of the Constitution and supervisory jurisdiction and the power of superintendence under Article 227 of the Constitution. But, an eloquent and fertile one, a writ of certiorari is issued in exercise of original jurisdiction. Whenever word supervisory has been used in the context of Article 226 it is in contrast with the appellate or revisional jurisdiction. When a writ is issued under Article 226 of the Constitution in respect of Courts or tribunals it is done in exercise of original jurisdiction and the parameters are different than Article 227 of the Constitution of India. It is worth noting that the power under Article 227 was there in a different manner under the Government of India Act. Power of superintendence is distinct from the exercise of power of revisional or supervisory jurisdiction which is a facet of the power of superintendence. The confusion occurs when one applies the principle of equivalence or equates the exercise of supervisory power and power of superintendence with original or supervisory jurisdiction. There is an acceptable nuance between the concept of jurisdiction and exercise of power by certain parameters. Both do come within the fundamental concept of judicial review but the jurisdiction exercised is different when under Article 226 a writ is issued it is issued in exercise of original jurisdiction whether against a tribunal or inferior Courts or administrative authorities. The word superintendence has not been used in Article 226 of the Constitution. It is also evident that the term writs is not referred to in Article 227. On a scrutiny of Article 227 it would be crystal clear that power of superintendence conferred on the High Courts is a power that is restricted to the Courts and tribunal in relation to which it exercises jurisdiction. On the contrary the power conferred on the High Court under Article 226 is not constricted and confined to the Courts and tribunals but it extends to any person or authority. Be it noted, Article 226 as has been engrafted in the Constitution covers entirely a new area, a broader one in a larger spectrum. When the Legislature has used the terms in exercise of original jurisdiction and supervisory jurisdiction it has to be understood that they are used in contradistinction in the constitutional context as has been interpreted by the Apex Court. The words of the Section have to be understood to mean exercise of powers under Article 226 of the Constitution of India which is always original. -- M.P. SAMAJ KE KAMJOR VARGON KE KRISHI BHUMI HADAPNE SAMBANDHI KUCHAKRON SE PARITRAN TATHA MUKTI ADHINIYAM [3/1977]. Section 2: Writ appeal Maintainability from order of single Judge-When permissible Held, Maintainability of a writ appeal from an order of the learned single Judge would depend upon many an aspect and cannot be put into a strait jacket formula. It cannot be stated with mathematical exactitude. It would depend upon the pleadings in the writ petition, nature of the order passed by the single Judge, character and the contour of the order, directions issued, nomenclature given and the jurisdictional prospective in the constitutional context are to be perceived. It cannot be said in a hyper-technical manner that an order passed in a writ petition, if there is assail to the order emerging from the inferior tribunal or subordinate Courts has to be treated all the time for all purposes to be under Article 227 of the Constitution of India. It would depend upon the real nature of the order passed by the learned single Judge. The pleadings also assume immense significance. It would not be an over emphasis to state that an order in a writ petition can fit into the subtle contour of Articles 226 and 227 of the Constitution in a composite manner and they can co-inside, co-exist, overlap or imbricate. In this context it is apt to note that there may be cases where the single Judge may feel disposed or inclined to issue a writ to do full and complete justice because it is to be borne in mind that Article 226 of the Constitution is fundamentally a repository and reservoir of justice based on equity and good conscience. It will depend upon factual matrix of each case. Dr. Jaidev Siddha v. Jaiprakash Siddha, 2007(2) MPJR (FB) 361: AIR 2007 MP 269 (FB) is not impliedly overruled in view of dismissal of SLP preferred against order reported in Rama and Company v. State of Madhya Pradesh [2007 (2) MPJR 229 (DB) (MP)]. - The Tribunal only directed the AO to verify whether payment has been made and if satisfied to grant deduction.', 'caseanalysis' => null, 'casesref' => '', 'citingcases' => '', 'counselplain' => '', 'counseldef' => '', 'court' => 'Madhya Pradesh', 'court_type' => 'HC', 'decidedon' => '1995-09-27', 'deposition' => '', 'favorof' => null, 'findings' => null, 'judge' => '', 'judgement' => 'ORDER<p>BY THE COURT :</p><p>These are applications filed by the Revenue under s. 256(2) of the IT Act, 1961, for stating the case and to make reference of the following common questions :</p><p>'(i) Whether, on the facts and in the circumstances of the case, the Tribunal was justified in holding that ginning and pressing charges received from the members is allowable as an exemption though it was with the aid of power ?</p><p>(ii) Whether, on the facts and in the circumstances of the case, the Tribunal was justified in holding that the claim of the assessee though not admissible within the provisions of s. 80P(2)(v) but is admissible under s. 80P(2)(a)(iii) </p><p>(iii) Whether, on the facts and in the circumstances of the case, the Tribunal was justified in deleting interest under s. 217 </p><p>(iv) Whether, on the facts and in the circumstances of the case, the Tribunal was justified in deleting interest under s. 217 </p><p>(v) Whether, on the facts and in the circumstances of the case, Tribunal was justified in directing the Assessing Officer to verify the claim and to allow it the payment of sales-tax, central sales-tax, and entry-tax has been made before filing the returns under s. 139(1) even when the proviso was introduced w.e.f. 1st April, 1988, and not for the earlier years </p><p>(vi) Whether, on the facts and in the circumstances of the case, Tribunal was justified in deleting the penalty amounting to Rs. 1,30,000 on the ground that the foundation of levy of penalty does stand even when the Department has not accepted the same ?'</p><p>2. We have heard learned senior standing counsel for the Revenue. The assessee involved in these case is a co-operative society. The assessment years are during the period 1981 to 1985. Questions 1 and 2 are practically a repetition of the same question. Question No. 4 is a repetition of question No. 3. Therefore, the question No. 4 is deleted. Questions 5 and 6 are renumbered as question Nos. 4 and 5.</p><p>3. The assessee is a co-operative society whose members are cotton growers. The society has been established to help the members in the matter of ginning and pressing cotton and finding market for the processed cotton. The society charges fee for ginning and pressing and also collects a fee for assessing the marketing operations from members. The society contended that it is engaged in marketing of agricultural produce of its members and also processing the agricultural produce of its members and, therefore, it is entitled for deduction of the whole of amount of profit and gains of business attributable to such activities from the assessable income under s. 80P(2) of the Act. The Assessing Officer (AO) negatived this claim on the ground that s. 80P(2)(v) can be invoked only where the processing is done without the aid of power and since processing is done by the assessee with the aid of power, deduction cannot be granted. The appellate authority and the Tribunal took the view that deduction has to be granted under s. 80P(2)(iii) of the Act since the society is engaged in marketing of agricultural produce of its members. It is this decision which has given rise to question Nos. 1 and 2. Question No. 3 is incidental to the answers to question Nos. 1 and 2.</p><p>4. Sec. 43B of the Act states, inter alia, that where sales-tax, central sales-tax and entry-tax is alleged to be paid, deduction is to be given only on actual payment and not on the basis of subsistence of liability. The AO held that payment is not proved and deleted deduction. Tribunal directed him to enquire under the question as to what extent payment has been made and to give deduction to the actual payment made. This decision has led to question No. 4. Question No. 5 is incidental to the answers to other questions.</p><p>5. The order of the Tribunal makes it abundantly clear that deduction is granted in regard to profits from the ginning and pressing operation only because the society is engaged in marketing of agricultural produce of its members. This is under s. 80P(2)(iii) of the Act. The condition that processing shall be done without the aid of the power, seen in sub-cl. (v), is not a condition precedent with reference to sub-cl. (iii). This matter has been clarified by the Supreme Court with reference to the provisions of the Act as they stood prior to 1968 amendment [see Broach Distt. Co-operative Cotton Sales Ginning & Pressing Society Ltd. vs . CIT : [1989]177ITR418(SC) ]. In regard to the controversy arising in these cases, the amendment has not made any practical difference. The question is, therefore, covered by the decision of the Supreme Court and cannot be said to arise.</p><p>6. The Tribunal has not granted deduction to the assessee under s. 43B of the Act in regard to the alleged payments of sales-tax, central sales-tax and entry-tax. The Tribunal only directed the AO to verify whether payment has been made and if satisfied to grant deduction. This part of the decision of the Tribunal cannot be said to have given rise to any question of law. Other questions are incidental to the alleged main questions and do not require independent consideration.</p><p>7. For the reasons indicated above, we hold that no question of law calling for stating the case and making a reference arises for consideration in these cases. Applications are accordingly dismissed.<p></p><p>', 'observations' => null, 'overruledby' => null, 'prhistory' => '', 'pubs' => '(1996)130CTR(MP)431', 'ratiodecidendi' => '', 'respondent' => 'Co-operative Processing and Marketing Society.', 'sub' => 'Direct Taxation', 'link' => null, 'circuit' => null ) ) $casename_url = 'commissioner-income-tax-vs-operative-processing' $args = array( (int) 0 => '510422', (int) 1 => 'commissioner-income-tax-vs-operative-processing' ) $url = 'https://sooperkanoon.com/case/amp/510422/commissioner-income-tax-vs-operative-processing' $ctype = ' High Court' $content = array( (int) 0 => 'ORDER<p>BY THE COURT :', (int) 1 => '<p>These are applications filed by the Revenue under s. 256(2) of the IT Act, 1961, for stating the case and to make reference of the following common questions :', (int) 2 => '<p>'(i) Whether, on the facts and in the circumstances of the case, the Tribunal was justified in holding that ginning and pressing charges received from the members is allowable as an exemption though it was with the aid of power ?', (int) 3 => '<p>(ii) Whether, on the facts and in the circumstances of the case, the Tribunal was justified in holding that the claim of the assessee though not admissible within the provisions of s. 80P(2)(v) but is admissible under s. 80P(2)(a)(iii) ', (int) 4 => '<p>(iii) Whether, on the facts and in the circumstances of the case, the Tribunal was justified in deleting interest under s. 217 ', (int) 5 => '<p>(iv) Whether, on the facts and in the circumstances of the case, the Tribunal was justified in deleting interest under s. 217 ', (int) 6 => '<p>(v) Whether, on the facts and in the circumstances of the case, Tribunal was justified in directing the Assessing Officer to verify the claim and to allow it the payment of sales-tax, central sales-tax, and entry-tax has been made before filing the returns under s. 139(1) even when the proviso was introduced w.e.f. 1st April, 1988, and not for the earlier years ', (int) 7 => '<p>(vi) Whether, on the facts and in the circumstances of the case, Tribunal was justified in deleting the penalty amounting to Rs. 1,30,000 on the ground that the foundation of levy of penalty does stand even when the Department has not accepted the same ?'', (int) 8 => '<p>2. We have heard learned senior standing counsel for the Revenue. The assessee involved in these case is a co-operative society. The assessment years are during the period 1981 to 1985. Questions 1 and 2 are practically a repetition of the same question. Question No. 4 is a repetition of question No. 3. Therefore, the question No. 4 is deleted. Questions 5 and 6 are renumbered as question Nos. 4 and 5.', (int) 9 => '<p>3. The assessee is a co-operative society whose members are cotton growers. The society has been established to help the members in the matter of ginning and pressing cotton and finding market for the processed cotton. The society charges fee for ginning and pressing and also collects a fee for assessing the marketing operations from members. The society contended that it is engaged in marketing of agricultural produce of its members and also processing the agricultural produce of its members and, therefore, it is entitled for deduction of the whole of amount of profit and gains of business attributable to such activities from the assessable income under s. 80P(2) of the Act. The Assessing Officer (AO) negatived this claim on the ground that s. 80P(2)(v) can be invoked only where the processing is done without the aid of power and since processing is done by the assessee with the aid of power, deduction cannot be granted. The appellate authority and the Tribunal took the view that deduction has to be granted under s. 80P(2)(iii) of the Act since the society is engaged in marketing of agricultural produce of its members. It is this decision which has given rise to question Nos. 1 and 2. Question No. 3 is incidental to the answers to question Nos. 1 and 2.', (int) 10 => '<p>4. Sec. 43B of the Act states, inter alia, that where sales-tax, central sales-tax and entry-tax is alleged to be paid, deduction is to be given only on actual payment and not on the basis of subsistence of liability. The AO held that payment is not proved and deleted deduction. Tribunal directed him to enquire under the question as to what extent payment has been made and to give deduction to the actual payment made. This decision has led to question No. 4. Question No. 5 is incidental to the answers to other questions.', (int) 11 => '<p>5. The order of the Tribunal makes it abundantly clear that deduction is granted in regard to profits from the ginning and pressing operation only because the society is engaged in marketing of agricultural produce of its members. This is under s. 80P(2)(iii) of the Act. The condition that processing shall be done without the aid of the power, seen in sub-cl. (v), is not a condition precedent with reference to sub-cl. (iii). This matter has been clarified by the Supreme Court with reference to the provisions of the Act as they stood prior to 1968 amendment [see Broach Distt. Co-operative Cotton Sales Ginning & Pressing Society Ltd. vs . CIT : [1989]177ITR418(SC) ]. In regard to the controversy arising in these cases, the amendment has not made any practical difference. The question is, therefore, covered by the decision of the Supreme Court and cannot be said to arise.', (int) 12 => '<p>6. The Tribunal has not granted deduction to the assessee under s. 43B of the Act in regard to the alleged payments of sales-tax, central sales-tax and entry-tax. The Tribunal only directed the AO to verify whether payment has been made and if satisfied to grant deduction. This part of the decision of the Tribunal cannot be said to have given rise to any question of law. Other questions are incidental to the alleged main questions and do not require independent consideration.', (int) 13 => '<p>7. For the reasons indicated above, we hold that no question of law calling for stating the case and making a reference arises for consideration in these cases. Applications are accordingly dismissed.<p>', (int) 14 => '<p>' ) $paragraphAfter = (int) 1 $cnt = (int) 15 $i = (int) 0include - APP/View/Case/amp.ctp, line 144 View::_evaluate() - CORE/Cake/View/View.php, line 971 View::_render() - CORE/Cake/View/View.php, line 933 View::render() - CORE/Cake/View/View.php, line 473 Controller::render() - CORE/Cake/Controller/Controller.php, line 963 Dispatcher::_invoke() - CORE/Cake/Routing/Dispatcher.php, line 200 Dispatcher::dispatch() - CORE/Cake/Routing/Dispatcher.php, line 167 [main] - APP/webroot/index.php, line 109
BY THE COURT :
Notice (8): Undefined variable: query [APP/View/Case/amp.ctp, line 144]Code Contextecho $this->Adsense->display('responsive_rect');}echo html_entity_decode($this->Wand->highlight($content[$i], $query));$viewFile = '/home/legalcrystal/app/View/Case/amp.ctp' $dataForView = array( 'title_for_layout' => 'Commissioner of Income Tax Vs Co Operative Processing and Marketing Society - Citation 510422 - Court Judgment | ', 'desc' => array( 'Judgement' => array( 'id' => '510422', 'acts' => '', 'appealno' => 'MCC No. 563 of 1995 & other connected cases, 27th September, 1995', 'appellant' => 'Commissioner of Income Tax', 'authreffered' => '', 'casename' => 'Commissioner of Income Tax Vs. Co-operative Processing and Marketing Society.', 'casenote' => ' - CONSTITUTION OF INDIA 1055. Article 141; [A.K. Patnaik, C.J., Dipak Misra, Abhay Gohil, S. Samvatsar, & S.K. Gangele, JJ] Dismissal of SLP arising from decision of High Court Whether binding precedent Decision of Division Bench in Rama and Company v. State of Madhya Pradesh, [2007(II) MPJR 229] overruled by Full Bench of same High Court Prior to delivery of decision of Full Bench order passed in Division Bench decision assailed in SLP before Supreme Court Dismissal of SLP by short reasoned order, though declaration of law, but High Court is bound to follow earlier decisions in field regard being had to concept of precedents as per law laid down by Apex Court and Larger bench decision in Jabalpur Bus Operators Association, reported in [2003(1) MPJR 158]. Court clarifies that Dr. Jaidev Siddha v. Jaiprakash Siddha, 2007(2) MPJR (FB) 361; AIR 2007 MP 269 (FB) is not impliedly overruled in view of dismissal of SLP Articles 226 & 227; [A.K. Patnaik, C.J., Dipak Misra, Abhay Gohil, S. Samvatsar, & S.K. Gangele, JJ] Power to issue writ under Article 226 - [per Majority] The High Courts exercise original jurisdiction under Article 226 of the Constitution and supervisory jurisdiction and the power of superintendence under Article 227 of the Constitution. But, an eloquent and fertile one, a writ of certiorari is issued in exercise of original jurisdiction. Whenever word supervisory has been used in the context of Article 226 it is in contrast with the appellate or revisional jurisdiction. When a writ is issued under Article 226 of the Constitution in respect of Courts or tribunals it is done in exercise of original jurisdiction and the parameters are different than Article 227 of the Constitution of India. It is worth noting that the power under Article 227 was there in a different manner under the Government of India Act. Power of superintendence is distinct from the exercise of power of revisional or supervisory jurisdiction which is a facet of the power of superintendence. The confusion occurs when one applies the principle of equivalence or equates the exercise of supervisory power and power of superintendence with original or supervisory jurisdiction. There is an acceptable nuance between the concept of jurisdiction and exercise of power by certain parameters. Both do come within the fundamental concept of judicial review but the jurisdiction exercised is different when under Article 226 a writ is issued it is issued in exercise of original jurisdiction whether against a tribunal or inferior Courts or administrative authorities. The word superintendence has not been used in Article 226 of the Constitution. It is also evident that the term writs is not referred to in Article 227. On a scrutiny of Article 227 it would be crystal clear that power of superintendence conferred on the High Courts is a power that is restricted to the Courts and tribunal in relation to which it exercises jurisdiction. On the contrary the power conferred on the High Court under Article 226 is not constricted and confined to the Courts and tribunals but it extends to any person or authority. Be it noted, Article 226 as has been engrafted in the Constitution covers entirely a new area, a broader one in a larger spectrum. When the Legislature has used the terms in exercise of original jurisdiction and supervisory jurisdiction it has to be understood that they are used in contradistinction in the constitutional context as has been interpreted by the Apex Court. The words of the Section have to be understood to mean exercise of powers under Article 226 of the Constitution of India which is always original. -- M.P. SAMAJ KE KAMJOR VARGON KE KRISHI BHUMI HADAPNE SAMBANDHI KUCHAKRON SE PARITRAN TATHA MUKTI ADHINIYAM [3/1977]. Section 2: Writ appeal Maintainability from order of single Judge-When permissible Held, Maintainability of a writ appeal from an order of the learned single Judge would depend upon many an aspect and cannot be put into a strait jacket formula. It cannot be stated with mathematical exactitude. It would depend upon the pleadings in the writ petition, nature of the order passed by the single Judge, character and the contour of the order, directions issued, nomenclature given and the jurisdictional prospective in the constitutional context are to be perceived. It cannot be said in a hyper-technical manner that an order passed in a writ petition, if there is assail to the order emerging from the inferior tribunal or subordinate Courts has to be treated all the time for all purposes to be under Article 227 of the Constitution of India. It would depend upon the real nature of the order passed by the learned single Judge. The pleadings also assume immense significance. It would not be an over emphasis to state that an order in a writ petition can fit into the subtle contour of Articles 226 and 227 of the Constitution in a composite manner and they can co-inside, co-exist, overlap or imbricate. In this context it is apt to note that there may be cases where the single Judge may feel disposed or inclined to issue a writ to do full and complete justice because it is to be borne in mind that Article 226 of the Constitution is fundamentally a repository and reservoir of justice based on equity and good conscience. It will depend upon factual matrix of each case. Dr. Jaidev Siddha v. Jaiprakash Siddha, 2007(2) MPJR (FB) 361: AIR 2007 MP 269 (FB) is not impliedly overruled in view of dismissal of SLP preferred against order reported in Rama and Company v. State of Madhya Pradesh [2007 (2) MPJR 229 (DB) (MP)]. - The Tribunal only directed the AO to verify whether payment has been made and if satisfied to grant deduction.', 'caseanalysis' => null, 'casesref' => '', 'citingcases' => '', 'counselplain' => '', 'counseldef' => '', 'court' => 'Madhya Pradesh', 'court_type' => 'HC', 'decidedon' => '1995-09-27', 'deposition' => '', 'favorof' => null, 'findings' => null, 'judge' => '', 'judgement' => 'ORDER<p style="text-align: justify;">BY THE COURT :</p><p style="text-align: justify;">These are applications filed by the Revenue under s. 256(2) of the IT Act, 1961, for stating the case and to make reference of the following common questions :</p><p style="text-align: justify;">'(i) Whether, on the facts and in the circumstances of the case, the Tribunal was justified in holding that ginning and pressing charges received from the members is allowable as an exemption though it was with the aid of power ?</p><p style="text-align: justify;">(ii) Whether, on the facts and in the circumstances of the case, the Tribunal was justified in holding that the claim of the assessee though not admissible within the provisions of s. 80P(2)(v) but is admissible under s. 80P(2)(a)(iii) </p><p style="text-align: justify;">(iii) Whether, on the facts and in the circumstances of the case, the Tribunal was justified in deleting interest under s. 217 </p><p style="text-align: justify;">(iv) Whether, on the facts and in the circumstances of the case, the Tribunal was justified in deleting interest under s. 217 </p><p style="text-align: justify;">(v) Whether, on the facts and in the circumstances of the case, Tribunal was justified in directing the Assessing Officer to verify the claim and to allow it the payment of sales-tax, central sales-tax, and entry-tax has been made before filing the returns under s. 139(1) even when the proviso was introduced w.e.f. 1st April, 1988, and not for the earlier years </p><p style="text-align: justify;">(vi) Whether, on the facts and in the circumstances of the case, Tribunal was justified in deleting the penalty amounting to Rs. 1,30,000 on the ground that the foundation of levy of penalty does stand even when the Department has not accepted the same ?'</p><p style="text-align: justify;">2. We have heard learned senior standing counsel for the Revenue. The assessee involved in these case is a co-operative society. The assessment years are during the period 1981 to 1985. Questions 1 and 2 are practically a repetition of the same question. Question No. 4 is a repetition of question No. 3. Therefore, the question No. 4 is deleted. Questions 5 and 6 are renumbered as question Nos. 4 and 5.</p><p style="text-align: justify;">3. The assessee is a co-operative society whose members are cotton growers. The society has been established to help the members in the matter of ginning and pressing cotton and finding market for the processed cotton. The society charges fee for ginning and pressing and also collects a fee for assessing the marketing operations from members. The society contended that it is engaged in marketing of agricultural produce of its members and also processing the agricultural produce of its members and, therefore, it is entitled for deduction of the whole of amount of profit and gains of business attributable to such activities from the assessable income under s. 80P(2) of the Act. The Assessing Officer (AO) negatived this claim on the ground that s. 80P(2)(v) can be invoked only where the processing is done without the aid of power and since processing is done by the assessee with the aid of power, deduction cannot be granted. The appellate authority and the Tribunal took the view that deduction has to be granted under s. 80P(2)(iii) of the Act since the society is engaged in marketing of agricultural produce of its members. It is this decision which has given rise to question Nos. 1 and 2. Question No. 3 is incidental to the answers to question Nos. 1 and 2.</p><p style="text-align: justify;">4. Sec. 43B of the Act states, inter alia, that where sales-tax, central sales-tax and entry-tax is alleged to be paid, deduction is to be given only on actual payment and not on the basis of subsistence of liability. The AO held that payment is not proved and deleted deduction. Tribunal directed him to enquire under the question as to what extent payment has been made and to give deduction to the actual payment made. This decision has led to question No. 4. Question No. 5 is incidental to the answers to other questions.</p><p style="text-align: justify;">5. The order of the Tribunal makes it abundantly clear that deduction is granted in regard to profits from the ginning and pressing operation only because the society is engaged in marketing of agricultural produce of its members. This is under s. 80P(2)(iii) of the Act. The condition that processing shall be done without the aid of the power, seen in sub-cl. (v), is not a condition precedent with reference to sub-cl. (iii). This matter has been clarified by the Supreme Court with reference to the provisions of the Act as they stood prior to 1968 amendment [see Broach Distt. Co-operative Cotton Sales Ginning & Pressing Society Ltd. vs . CIT : [1989]177ITR418(SC) ]. In regard to the controversy arising in these cases, the amendment has not made any practical difference. The question is, therefore, covered by the decision of the Supreme Court and cannot be said to arise.</p><p style="text-align: justify;">6. The Tribunal has not granted deduction to the assessee under s. 43B of the Act in regard to the alleged payments of sales-tax, central sales-tax and entry-tax. The Tribunal only directed the AO to verify whether payment has been made and if satisfied to grant deduction. This part of the decision of the Tribunal cannot be said to have given rise to any question of law. Other questions are incidental to the alleged main questions and do not require independent consideration.</p><p style="text-align: justify;">7. For the reasons indicated above, we hold that no question of law calling for stating the case and making a reference arises for consideration in these cases. Applications are accordingly dismissed.<p style="text-align: justify;"></p><p style="text-align: justify;">', 'observations' => null, 'overruledby' => null, 'prhistory' => '', 'pubs' => '(1996)130CTR(MP)431', 'ratiodecidendi' => '', 'respondent' => 'Co-operative Processing and Marketing Society.', 'sub' => 'Direct Taxation', 'link' => null, 'circuit' => null ) ), 'casename_url' => 'commissioner-income-tax-vs-operative-processing', 'args' => array( (int) 0 => '510422', (int) 1 => 'commissioner-income-tax-vs-operative-processing' ) ) $title_for_layout = 'Commissioner of Income Tax Vs Co Operative Processing and Marketing Society - Citation 510422 - Court Judgment | ' $desc = array( 'Judgement' => array( 'id' => '510422', 'acts' => '', 'appealno' => 'MCC No. 563 of 1995 & other connected cases, 27th September, 1995', 'appellant' => 'Commissioner of Income Tax', 'authreffered' => '', 'casename' => 'Commissioner of Income Tax Vs. Co-operative Processing and Marketing Society.', 'casenote' => ' - CONSTITUTION OF INDIA 1055. Article 141; [A.K. Patnaik, C.J., Dipak Misra, Abhay Gohil, S. Samvatsar, & S.K. Gangele, JJ] Dismissal of SLP arising from decision of High Court Whether binding precedent Decision of Division Bench in Rama and Company v. State of Madhya Pradesh, [2007(II) MPJR 229] overruled by Full Bench of same High Court Prior to delivery of decision of Full Bench order passed in Division Bench decision assailed in SLP before Supreme Court Dismissal of SLP by short reasoned order, though declaration of law, but High Court is bound to follow earlier decisions in field regard being had to concept of precedents as per law laid down by Apex Court and Larger bench decision in Jabalpur Bus Operators Association, reported in [2003(1) MPJR 158]. Court clarifies that Dr. Jaidev Siddha v. Jaiprakash Siddha, 2007(2) MPJR (FB) 361; AIR 2007 MP 269 (FB) is not impliedly overruled in view of dismissal of SLP Articles 226 & 227; [A.K. Patnaik, C.J., Dipak Misra, Abhay Gohil, S. Samvatsar, & S.K. Gangele, JJ] Power to issue writ under Article 226 - [per Majority] The High Courts exercise original jurisdiction under Article 226 of the Constitution and supervisory jurisdiction and the power of superintendence under Article 227 of the Constitution. But, an eloquent and fertile one, a writ of certiorari is issued in exercise of original jurisdiction. Whenever word supervisory has been used in the context of Article 226 it is in contrast with the appellate or revisional jurisdiction. When a writ is issued under Article 226 of the Constitution in respect of Courts or tribunals it is done in exercise of original jurisdiction and the parameters are different than Article 227 of the Constitution of India. It is worth noting that the power under Article 227 was there in a different manner under the Government of India Act. Power of superintendence is distinct from the exercise of power of revisional or supervisory jurisdiction which is a facet of the power of superintendence. The confusion occurs when one applies the principle of equivalence or equates the exercise of supervisory power and power of superintendence with original or supervisory jurisdiction. There is an acceptable nuance between the concept of jurisdiction and exercise of power by certain parameters. Both do come within the fundamental concept of judicial review but the jurisdiction exercised is different when under Article 226 a writ is issued it is issued in exercise of original jurisdiction whether against a tribunal or inferior Courts or administrative authorities. The word superintendence has not been used in Article 226 of the Constitution. It is also evident that the term writs is not referred to in Article 227. On a scrutiny of Article 227 it would be crystal clear that power of superintendence conferred on the High Courts is a power that is restricted to the Courts and tribunal in relation to which it exercises jurisdiction. On the contrary the power conferred on the High Court under Article 226 is not constricted and confined to the Courts and tribunals but it extends to any person or authority. Be it noted, Article 226 as has been engrafted in the Constitution covers entirely a new area, a broader one in a larger spectrum. When the Legislature has used the terms in exercise of original jurisdiction and supervisory jurisdiction it has to be understood that they are used in contradistinction in the constitutional context as has been interpreted by the Apex Court. The words of the Section have to be understood to mean exercise of powers under Article 226 of the Constitution of India which is always original. -- M.P. SAMAJ KE KAMJOR VARGON KE KRISHI BHUMI HADAPNE SAMBANDHI KUCHAKRON SE PARITRAN TATHA MUKTI ADHINIYAM [3/1977]. Section 2: Writ appeal Maintainability from order of single Judge-When permissible Held, Maintainability of a writ appeal from an order of the learned single Judge would depend upon many an aspect and cannot be put into a strait jacket formula. It cannot be stated with mathematical exactitude. It would depend upon the pleadings in the writ petition, nature of the order passed by the single Judge, character and the contour of the order, directions issued, nomenclature given and the jurisdictional prospective in the constitutional context are to be perceived. It cannot be said in a hyper-technical manner that an order passed in a writ petition, if there is assail to the order emerging from the inferior tribunal or subordinate Courts has to be treated all the time for all purposes to be under Article 227 of the Constitution of India. It would depend upon the real nature of the order passed by the learned single Judge. The pleadings also assume immense significance. It would not be an over emphasis to state that an order in a writ petition can fit into the subtle contour of Articles 226 and 227 of the Constitution in a composite manner and they can co-inside, co-exist, overlap or imbricate. In this context it is apt to note that there may be cases where the single Judge may feel disposed or inclined to issue a writ to do full and complete justice because it is to be borne in mind that Article 226 of the Constitution is fundamentally a repository and reservoir of justice based on equity and good conscience. It will depend upon factual matrix of each case. Dr. Jaidev Siddha v. Jaiprakash Siddha, 2007(2) MPJR (FB) 361: AIR 2007 MP 269 (FB) is not impliedly overruled in view of dismissal of SLP preferred against order reported in Rama and Company v. State of Madhya Pradesh [2007 (2) MPJR 229 (DB) (MP)]. - The Tribunal only directed the AO to verify whether payment has been made and if satisfied to grant deduction.', 'caseanalysis' => null, 'casesref' => '', 'citingcases' => '', 'counselplain' => '', 'counseldef' => '', 'court' => 'Madhya Pradesh', 'court_type' => 'HC', 'decidedon' => '1995-09-27', 'deposition' => '', 'favorof' => null, 'findings' => null, 'judge' => '', 'judgement' => 'ORDER<p>BY THE COURT :</p><p>These are applications filed by the Revenue under s. 256(2) of the IT Act, 1961, for stating the case and to make reference of the following common questions :</p><p>'(i) Whether, on the facts and in the circumstances of the case, the Tribunal was justified in holding that ginning and pressing charges received from the members is allowable as an exemption though it was with the aid of power ?</p><p>(ii) Whether, on the facts and in the circumstances of the case, the Tribunal was justified in holding that the claim of the assessee though not admissible within the provisions of s. 80P(2)(v) but is admissible under s. 80P(2)(a)(iii) </p><p>(iii) Whether, on the facts and in the circumstances of the case, the Tribunal was justified in deleting interest under s. 217 </p><p>(iv) Whether, on the facts and in the circumstances of the case, the Tribunal was justified in deleting interest under s. 217 </p><p>(v) Whether, on the facts and in the circumstances of the case, Tribunal was justified in directing the Assessing Officer to verify the claim and to allow it the payment of sales-tax, central sales-tax, and entry-tax has been made before filing the returns under s. 139(1) even when the proviso was introduced w.e.f. 1st April, 1988, and not for the earlier years </p><p>(vi) Whether, on the facts and in the circumstances of the case, Tribunal was justified in deleting the penalty amounting to Rs. 1,30,000 on the ground that the foundation of levy of penalty does stand even when the Department has not accepted the same ?'</p><p>2. We have heard learned senior standing counsel for the Revenue. The assessee involved in these case is a co-operative society. The assessment years are during the period 1981 to 1985. Questions 1 and 2 are practically a repetition of the same question. Question No. 4 is a repetition of question No. 3. Therefore, the question No. 4 is deleted. Questions 5 and 6 are renumbered as question Nos. 4 and 5.</p><p>3. The assessee is a co-operative society whose members are cotton growers. The society has been established to help the members in the matter of ginning and pressing cotton and finding market for the processed cotton. The society charges fee for ginning and pressing and also collects a fee for assessing the marketing operations from members. The society contended that it is engaged in marketing of agricultural produce of its members and also processing the agricultural produce of its members and, therefore, it is entitled for deduction of the whole of amount of profit and gains of business attributable to such activities from the assessable income under s. 80P(2) of the Act. The Assessing Officer (AO) negatived this claim on the ground that s. 80P(2)(v) can be invoked only where the processing is done without the aid of power and since processing is done by the assessee with the aid of power, deduction cannot be granted. The appellate authority and the Tribunal took the view that deduction has to be granted under s. 80P(2)(iii) of the Act since the society is engaged in marketing of agricultural produce of its members. It is this decision which has given rise to question Nos. 1 and 2. Question No. 3 is incidental to the answers to question Nos. 1 and 2.</p><p>4. Sec. 43B of the Act states, inter alia, that where sales-tax, central sales-tax and entry-tax is alleged to be paid, deduction is to be given only on actual payment and not on the basis of subsistence of liability. The AO held that payment is not proved and deleted deduction. Tribunal directed him to enquire under the question as to what extent payment has been made and to give deduction to the actual payment made. This decision has led to question No. 4. Question No. 5 is incidental to the answers to other questions.</p><p>5. The order of the Tribunal makes it abundantly clear that deduction is granted in regard to profits from the ginning and pressing operation only because the society is engaged in marketing of agricultural produce of its members. This is under s. 80P(2)(iii) of the Act. The condition that processing shall be done without the aid of the power, seen in sub-cl. (v), is not a condition precedent with reference to sub-cl. (iii). This matter has been clarified by the Supreme Court with reference to the provisions of the Act as they stood prior to 1968 amendment [see Broach Distt. Co-operative Cotton Sales Ginning & Pressing Society Ltd. vs . CIT : [1989]177ITR418(SC) ]. In regard to the controversy arising in these cases, the amendment has not made any practical difference. The question is, therefore, covered by the decision of the Supreme Court and cannot be said to arise.</p><p>6. The Tribunal has not granted deduction to the assessee under s. 43B of the Act in regard to the alleged payments of sales-tax, central sales-tax and entry-tax. The Tribunal only directed the AO to verify whether payment has been made and if satisfied to grant deduction. This part of the decision of the Tribunal cannot be said to have given rise to any question of law. Other questions are incidental to the alleged main questions and do not require independent consideration.</p><p>7. For the reasons indicated above, we hold that no question of law calling for stating the case and making a reference arises for consideration in these cases. Applications are accordingly dismissed.<p></p><p>', 'observations' => null, 'overruledby' => null, 'prhistory' => '', 'pubs' => '(1996)130CTR(MP)431', 'ratiodecidendi' => '', 'respondent' => 'Co-operative Processing and Marketing Society.', 'sub' => 'Direct Taxation', 'link' => null, 'circuit' => null ) ) $casename_url = 'commissioner-income-tax-vs-operative-processing' $args = array( (int) 0 => '510422', (int) 1 => 'commissioner-income-tax-vs-operative-processing' ) $url = 'https://sooperkanoon.com/case/amp/510422/commissioner-income-tax-vs-operative-processing' $ctype = ' High Court' $content = array( (int) 0 => 'ORDER<p>BY THE COURT :', (int) 1 => '<p>These are applications filed by the Revenue under s. 256(2) of the IT Act, 1961, for stating the case and to make reference of the following common questions :', (int) 2 => '<p>'(i) Whether, on the facts and in the circumstances of the case, the Tribunal was justified in holding that ginning and pressing charges received from the members is allowable as an exemption though it was with the aid of power ?', (int) 3 => '<p>(ii) Whether, on the facts and in the circumstances of the case, the Tribunal was justified in holding that the claim of the assessee though not admissible within the provisions of s. 80P(2)(v) but is admissible under s. 80P(2)(a)(iii) ', (int) 4 => '<p>(iii) Whether, on the facts and in the circumstances of the case, the Tribunal was justified in deleting interest under s. 217 ', (int) 5 => '<p>(iv) Whether, on the facts and in the circumstances of the case, the Tribunal was justified in deleting interest under s. 217 ', (int) 6 => '<p>(v) Whether, on the facts and in the circumstances of the case, Tribunal was justified in directing the Assessing Officer to verify the claim and to allow it the payment of sales-tax, central sales-tax, and entry-tax has been made before filing the returns under s. 139(1) even when the proviso was introduced w.e.f. 1st April, 1988, and not for the earlier years ', (int) 7 => '<p>(vi) Whether, on the facts and in the circumstances of the case, Tribunal was justified in deleting the penalty amounting to Rs. 1,30,000 on the ground that the foundation of levy of penalty does stand even when the Department has not accepted the same ?'', (int) 8 => '<p>2. We have heard learned senior standing counsel for the Revenue. The assessee involved in these case is a co-operative society. The assessment years are during the period 1981 to 1985. Questions 1 and 2 are practically a repetition of the same question. Question No. 4 is a repetition of question No. 3. Therefore, the question No. 4 is deleted. Questions 5 and 6 are renumbered as question Nos. 4 and 5.', (int) 9 => '<p>3. The assessee is a co-operative society whose members are cotton growers. The society has been established to help the members in the matter of ginning and pressing cotton and finding market for the processed cotton. The society charges fee for ginning and pressing and also collects a fee for assessing the marketing operations from members. The society contended that it is engaged in marketing of agricultural produce of its members and also processing the agricultural produce of its members and, therefore, it is entitled for deduction of the whole of amount of profit and gains of business attributable to such activities from the assessable income under s. 80P(2) of the Act. The Assessing Officer (AO) negatived this claim on the ground that s. 80P(2)(v) can be invoked only where the processing is done without the aid of power and since processing is done by the assessee with the aid of power, deduction cannot be granted. The appellate authority and the Tribunal took the view that deduction has to be granted under s. 80P(2)(iii) of the Act since the society is engaged in marketing of agricultural produce of its members. It is this decision which has given rise to question Nos. 1 and 2. Question No. 3 is incidental to the answers to question Nos. 1 and 2.', (int) 10 => '<p>4. Sec. 43B of the Act states, inter alia, that where sales-tax, central sales-tax and entry-tax is alleged to be paid, deduction is to be given only on actual payment and not on the basis of subsistence of liability. The AO held that payment is not proved and deleted deduction. Tribunal directed him to enquire under the question as to what extent payment has been made and to give deduction to the actual payment made. This decision has led to question No. 4. Question No. 5 is incidental to the answers to other questions.', (int) 11 => '<p>5. The order of the Tribunal makes it abundantly clear that deduction is granted in regard to profits from the ginning and pressing operation only because the society is engaged in marketing of agricultural produce of its members. This is under s. 80P(2)(iii) of the Act. The condition that processing shall be done without the aid of the power, seen in sub-cl. (v), is not a condition precedent with reference to sub-cl. (iii). This matter has been clarified by the Supreme Court with reference to the provisions of the Act as they stood prior to 1968 amendment [see Broach Distt. Co-operative Cotton Sales Ginning & Pressing Society Ltd. vs . CIT : [1989]177ITR418(SC) ]. In regard to the controversy arising in these cases, the amendment has not made any practical difference. The question is, therefore, covered by the decision of the Supreme Court and cannot be said to arise.', (int) 12 => '<p>6. The Tribunal has not granted deduction to the assessee under s. 43B of the Act in regard to the alleged payments of sales-tax, central sales-tax and entry-tax. The Tribunal only directed the AO to verify whether payment has been made and if satisfied to grant deduction. This part of the decision of the Tribunal cannot be said to have given rise to any question of law. Other questions are incidental to the alleged main questions and do not require independent consideration.', (int) 13 => '<p>7. For the reasons indicated above, we hold that no question of law calling for stating the case and making a reference arises for consideration in these cases. Applications are accordingly dismissed.<p>', (int) 14 => '<p>' ) $paragraphAfter = (int) 1 $cnt = (int) 15 $i = (int) 1include - APP/View/Case/amp.ctp, line 144 View::_evaluate() - CORE/Cake/View/View.php, line 971 View::_render() - CORE/Cake/View/View.php, line 933 View::render() - CORE/Cake/View/View.php, line 473 Controller::render() - CORE/Cake/Controller/Controller.php, line 963 Dispatcher::_invoke() - CORE/Cake/Routing/Dispatcher.php, line 200 Dispatcher::dispatch() - CORE/Cake/Routing/Dispatcher.php, line 167 [main] - APP/webroot/index.php, line 109
These are applications filed by the Revenue under s. 256(2) of the IT Act, 1961, for stating the case and to make reference of the following common questions :
Notice (8): Undefined variable: query [APP/View/Case/amp.ctp, line 144]Code Contextecho $this->Adsense->display('responsive_rect');}echo html_entity_decode($this->Wand->highlight($content[$i], $query));$viewFile = '/home/legalcrystal/app/View/Case/amp.ctp' $dataForView = array( 'title_for_layout' => 'Commissioner of Income Tax Vs Co Operative Processing and Marketing Society - Citation 510422 - Court Judgment | ', 'desc' => array( 'Judgement' => array( 'id' => '510422', 'acts' => '', 'appealno' => 'MCC No. 563 of 1995 & other connected cases, 27th September, 1995', 'appellant' => 'Commissioner of Income Tax', 'authreffered' => '', 'casename' => 'Commissioner of Income Tax Vs. Co-operative Processing and Marketing Society.', 'casenote' => ' - CONSTITUTION OF INDIA 1055. Article 141; [A.K. Patnaik, C.J., Dipak Misra, Abhay Gohil, S. Samvatsar, & S.K. Gangele, JJ] Dismissal of SLP arising from decision of High Court Whether binding precedent Decision of Division Bench in Rama and Company v. State of Madhya Pradesh, [2007(II) MPJR 229] overruled by Full Bench of same High Court Prior to delivery of decision of Full Bench order passed in Division Bench decision assailed in SLP before Supreme Court Dismissal of SLP by short reasoned order, though declaration of law, but High Court is bound to follow earlier decisions in field regard being had to concept of precedents as per law laid down by Apex Court and Larger bench decision in Jabalpur Bus Operators Association, reported in [2003(1) MPJR 158]. Court clarifies that Dr. Jaidev Siddha v. Jaiprakash Siddha, 2007(2) MPJR (FB) 361; AIR 2007 MP 269 (FB) is not impliedly overruled in view of dismissal of SLP Articles 226 & 227; [A.K. Patnaik, C.J., Dipak Misra, Abhay Gohil, S. Samvatsar, & S.K. Gangele, JJ] Power to issue writ under Article 226 - [per Majority] The High Courts exercise original jurisdiction under Article 226 of the Constitution and supervisory jurisdiction and the power of superintendence under Article 227 of the Constitution. But, an eloquent and fertile one, a writ of certiorari is issued in exercise of original jurisdiction. Whenever word supervisory has been used in the context of Article 226 it is in contrast with the appellate or revisional jurisdiction. When a writ is issued under Article 226 of the Constitution in respect of Courts or tribunals it is done in exercise of original jurisdiction and the parameters are different than Article 227 of the Constitution of India. It is worth noting that the power under Article 227 was there in a different manner under the Government of India Act. Power of superintendence is distinct from the exercise of power of revisional or supervisory jurisdiction which is a facet of the power of superintendence. The confusion occurs when one applies the principle of equivalence or equates the exercise of supervisory power and power of superintendence with original or supervisory jurisdiction. There is an acceptable nuance between the concept of jurisdiction and exercise of power by certain parameters. Both do come within the fundamental concept of judicial review but the jurisdiction exercised is different when under Article 226 a writ is issued it is issued in exercise of original jurisdiction whether against a tribunal or inferior Courts or administrative authorities. The word superintendence has not been used in Article 226 of the Constitution. It is also evident that the term writs is not referred to in Article 227. On a scrutiny of Article 227 it would be crystal clear that power of superintendence conferred on the High Courts is a power that is restricted to the Courts and tribunal in relation to which it exercises jurisdiction. On the contrary the power conferred on the High Court under Article 226 is not constricted and confined to the Courts and tribunals but it extends to any person or authority. Be it noted, Article 226 as has been engrafted in the Constitution covers entirely a new area, a broader one in a larger spectrum. When the Legislature has used the terms in exercise of original jurisdiction and supervisory jurisdiction it has to be understood that they are used in contradistinction in the constitutional context as has been interpreted by the Apex Court. The words of the Section have to be understood to mean exercise of powers under Article 226 of the Constitution of India which is always original. -- M.P. SAMAJ KE KAMJOR VARGON KE KRISHI BHUMI HADAPNE SAMBANDHI KUCHAKRON SE PARITRAN TATHA MUKTI ADHINIYAM [3/1977]. Section 2: Writ appeal Maintainability from order of single Judge-When permissible Held, Maintainability of a writ appeal from an order of the learned single Judge would depend upon many an aspect and cannot be put into a strait jacket formula. It cannot be stated with mathematical exactitude. It would depend upon the pleadings in the writ petition, nature of the order passed by the single Judge, character and the contour of the order, directions issued, nomenclature given and the jurisdictional prospective in the constitutional context are to be perceived. It cannot be said in a hyper-technical manner that an order passed in a writ petition, if there is assail to the order emerging from the inferior tribunal or subordinate Courts has to be treated all the time for all purposes to be under Article 227 of the Constitution of India. It would depend upon the real nature of the order passed by the learned single Judge. The pleadings also assume immense significance. It would not be an over emphasis to state that an order in a writ petition can fit into the subtle contour of Articles 226 and 227 of the Constitution in a composite manner and they can co-inside, co-exist, overlap or imbricate. In this context it is apt to note that there may be cases where the single Judge may feel disposed or inclined to issue a writ to do full and complete justice because it is to be borne in mind that Article 226 of the Constitution is fundamentally a repository and reservoir of justice based on equity and good conscience. It will depend upon factual matrix of each case. Dr. Jaidev Siddha v. Jaiprakash Siddha, 2007(2) MPJR (FB) 361: AIR 2007 MP 269 (FB) is not impliedly overruled in view of dismissal of SLP preferred against order reported in Rama and Company v. State of Madhya Pradesh [2007 (2) MPJR 229 (DB) (MP)]. - The Tribunal only directed the AO to verify whether payment has been made and if satisfied to grant deduction.', 'caseanalysis' => null, 'casesref' => '', 'citingcases' => '', 'counselplain' => '', 'counseldef' => '', 'court' => 'Madhya Pradesh', 'court_type' => 'HC', 'decidedon' => '1995-09-27', 'deposition' => '', 'favorof' => null, 'findings' => null, 'judge' => '', 'judgement' => 'ORDER<p style="text-align: justify;">BY THE COURT :</p><p style="text-align: justify;">These are applications filed by the Revenue under s. 256(2) of the IT Act, 1961, for stating the case and to make reference of the following common questions :</p><p style="text-align: justify;">'(i) Whether, on the facts and in the circumstances of the case, the Tribunal was justified in holding that ginning and pressing charges received from the members is allowable as an exemption though it was with the aid of power ?</p><p style="text-align: justify;">(ii) Whether, on the facts and in the circumstances of the case, the Tribunal was justified in holding that the claim of the assessee though not admissible within the provisions of s. 80P(2)(v) but is admissible under s. 80P(2)(a)(iii) </p><p style="text-align: justify;">(iii) Whether, on the facts and in the circumstances of the case, the Tribunal was justified in deleting interest under s. 217 </p><p style="text-align: justify;">(iv) Whether, on the facts and in the circumstances of the case, the Tribunal was justified in deleting interest under s. 217 </p><p style="text-align: justify;">(v) Whether, on the facts and in the circumstances of the case, Tribunal was justified in directing the Assessing Officer to verify the claim and to allow it the payment of sales-tax, central sales-tax, and entry-tax has been made before filing the returns under s. 139(1) even when the proviso was introduced w.e.f. 1st April, 1988, and not for the earlier years </p><p style="text-align: justify;">(vi) Whether, on the facts and in the circumstances of the case, Tribunal was justified in deleting the penalty amounting to Rs. 1,30,000 on the ground that the foundation of levy of penalty does stand even when the Department has not accepted the same ?'</p><p style="text-align: justify;">2. We have heard learned senior standing counsel for the Revenue. The assessee involved in these case is a co-operative society. The assessment years are during the period 1981 to 1985. Questions 1 and 2 are practically a repetition of the same question. Question No. 4 is a repetition of question No. 3. Therefore, the question No. 4 is deleted. Questions 5 and 6 are renumbered as question Nos. 4 and 5.</p><p style="text-align: justify;">3. The assessee is a co-operative society whose members are cotton growers. The society has been established to help the members in the matter of ginning and pressing cotton and finding market for the processed cotton. The society charges fee for ginning and pressing and also collects a fee for assessing the marketing operations from members. The society contended that it is engaged in marketing of agricultural produce of its members and also processing the agricultural produce of its members and, therefore, it is entitled for deduction of the whole of amount of profit and gains of business attributable to such activities from the assessable income under s. 80P(2) of the Act. The Assessing Officer (AO) negatived this claim on the ground that s. 80P(2)(v) can be invoked only where the processing is done without the aid of power and since processing is done by the assessee with the aid of power, deduction cannot be granted. The appellate authority and the Tribunal took the view that deduction has to be granted under s. 80P(2)(iii) of the Act since the society is engaged in marketing of agricultural produce of its members. It is this decision which has given rise to question Nos. 1 and 2. Question No. 3 is incidental to the answers to question Nos. 1 and 2.</p><p style="text-align: justify;">4. Sec. 43B of the Act states, inter alia, that where sales-tax, central sales-tax and entry-tax is alleged to be paid, deduction is to be given only on actual payment and not on the basis of subsistence of liability. The AO held that payment is not proved and deleted deduction. Tribunal directed him to enquire under the question as to what extent payment has been made and to give deduction to the actual payment made. This decision has led to question No. 4. Question No. 5 is incidental to the answers to other questions.</p><p style="text-align: justify;">5. The order of the Tribunal makes it abundantly clear that deduction is granted in regard to profits from the ginning and pressing operation only because the society is engaged in marketing of agricultural produce of its members. This is under s. 80P(2)(iii) of the Act. The condition that processing shall be done without the aid of the power, seen in sub-cl. (v), is not a condition precedent with reference to sub-cl. (iii). This matter has been clarified by the Supreme Court with reference to the provisions of the Act as they stood prior to 1968 amendment [see Broach Distt. Co-operative Cotton Sales Ginning & Pressing Society Ltd. vs . CIT : [1989]177ITR418(SC) ]. In regard to the controversy arising in these cases, the amendment has not made any practical difference. The question is, therefore, covered by the decision of the Supreme Court and cannot be said to arise.</p><p style="text-align: justify;">6. The Tribunal has not granted deduction to the assessee under s. 43B of the Act in regard to the alleged payments of sales-tax, central sales-tax and entry-tax. The Tribunal only directed the AO to verify whether payment has been made and if satisfied to grant deduction. This part of the decision of the Tribunal cannot be said to have given rise to any question of law. Other questions are incidental to the alleged main questions and do not require independent consideration.</p><p style="text-align: justify;">7. For the reasons indicated above, we hold that no question of law calling for stating the case and making a reference arises for consideration in these cases. Applications are accordingly dismissed.<p style="text-align: justify;"></p><p style="text-align: justify;">', 'observations' => null, 'overruledby' => null, 'prhistory' => '', 'pubs' => '(1996)130CTR(MP)431', 'ratiodecidendi' => '', 'respondent' => 'Co-operative Processing and Marketing Society.', 'sub' => 'Direct Taxation', 'link' => null, 'circuit' => null ) ), 'casename_url' => 'commissioner-income-tax-vs-operative-processing', 'args' => array( (int) 0 => '510422', (int) 1 => 'commissioner-income-tax-vs-operative-processing' ) ) $title_for_layout = 'Commissioner of Income Tax Vs Co Operative Processing and Marketing Society - Citation 510422 - Court Judgment | ' $desc = array( 'Judgement' => array( 'id' => '510422', 'acts' => '', 'appealno' => 'MCC No. 563 of 1995 & other connected cases, 27th September, 1995', 'appellant' => 'Commissioner of Income Tax', 'authreffered' => '', 'casename' => 'Commissioner of Income Tax Vs. Co-operative Processing and Marketing Society.', 'casenote' => ' - CONSTITUTION OF INDIA 1055. Article 141; [A.K. Patnaik, C.J., Dipak Misra, Abhay Gohil, S. Samvatsar, & S.K. Gangele, JJ] Dismissal of SLP arising from decision of High Court Whether binding precedent Decision of Division Bench in Rama and Company v. State of Madhya Pradesh, [2007(II) MPJR 229] overruled by Full Bench of same High Court Prior to delivery of decision of Full Bench order passed in Division Bench decision assailed in SLP before Supreme Court Dismissal of SLP by short reasoned order, though declaration of law, but High Court is bound to follow earlier decisions in field regard being had to concept of precedents as per law laid down by Apex Court and Larger bench decision in Jabalpur Bus Operators Association, reported in [2003(1) MPJR 158]. Court clarifies that Dr. Jaidev Siddha v. Jaiprakash Siddha, 2007(2) MPJR (FB) 361; AIR 2007 MP 269 (FB) is not impliedly overruled in view of dismissal of SLP Articles 226 & 227; [A.K. Patnaik, C.J., Dipak Misra, Abhay Gohil, S. Samvatsar, & S.K. Gangele, JJ] Power to issue writ under Article 226 - [per Majority] The High Courts exercise original jurisdiction under Article 226 of the Constitution and supervisory jurisdiction and the power of superintendence under Article 227 of the Constitution. But, an eloquent and fertile one, a writ of certiorari is issued in exercise of original jurisdiction. Whenever word supervisory has been used in the context of Article 226 it is in contrast with the appellate or revisional jurisdiction. When a writ is issued under Article 226 of the Constitution in respect of Courts or tribunals it is done in exercise of original jurisdiction and the parameters are different than Article 227 of the Constitution of India. It is worth noting that the power under Article 227 was there in a different manner under the Government of India Act. Power of superintendence is distinct from the exercise of power of revisional or supervisory jurisdiction which is a facet of the power of superintendence. The confusion occurs when one applies the principle of equivalence or equates the exercise of supervisory power and power of superintendence with original or supervisory jurisdiction. There is an acceptable nuance between the concept of jurisdiction and exercise of power by certain parameters. Both do come within the fundamental concept of judicial review but the jurisdiction exercised is different when under Article 226 a writ is issued it is issued in exercise of original jurisdiction whether against a tribunal or inferior Courts or administrative authorities. The word superintendence has not been used in Article 226 of the Constitution. It is also evident that the term writs is not referred to in Article 227. On a scrutiny of Article 227 it would be crystal clear that power of superintendence conferred on the High Courts is a power that is restricted to the Courts and tribunal in relation to which it exercises jurisdiction. On the contrary the power conferred on the High Court under Article 226 is not constricted and confined to the Courts and tribunals but it extends to any person or authority. Be it noted, Article 226 as has been engrafted in the Constitution covers entirely a new area, a broader one in a larger spectrum. When the Legislature has used the terms in exercise of original jurisdiction and supervisory jurisdiction it has to be understood that they are used in contradistinction in the constitutional context as has been interpreted by the Apex Court. The words of the Section have to be understood to mean exercise of powers under Article 226 of the Constitution of India which is always original. -- M.P. SAMAJ KE KAMJOR VARGON KE KRISHI BHUMI HADAPNE SAMBANDHI KUCHAKRON SE PARITRAN TATHA MUKTI ADHINIYAM [3/1977]. Section 2: Writ appeal Maintainability from order of single Judge-When permissible Held, Maintainability of a writ appeal from an order of the learned single Judge would depend upon many an aspect and cannot be put into a strait jacket formula. It cannot be stated with mathematical exactitude. It would depend upon the pleadings in the writ petition, nature of the order passed by the single Judge, character and the contour of the order, directions issued, nomenclature given and the jurisdictional prospective in the constitutional context are to be perceived. It cannot be said in a hyper-technical manner that an order passed in a writ petition, if there is assail to the order emerging from the inferior tribunal or subordinate Courts has to be treated all the time for all purposes to be under Article 227 of the Constitution of India. It would depend upon the real nature of the order passed by the learned single Judge. The pleadings also assume immense significance. It would not be an over emphasis to state that an order in a writ petition can fit into the subtle contour of Articles 226 and 227 of the Constitution in a composite manner and they can co-inside, co-exist, overlap or imbricate. In this context it is apt to note that there may be cases where the single Judge may feel disposed or inclined to issue a writ to do full and complete justice because it is to be borne in mind that Article 226 of the Constitution is fundamentally a repository and reservoir of justice based on equity and good conscience. It will depend upon factual matrix of each case. Dr. Jaidev Siddha v. Jaiprakash Siddha, 2007(2) MPJR (FB) 361: AIR 2007 MP 269 (FB) is not impliedly overruled in view of dismissal of SLP preferred against order reported in Rama and Company v. State of Madhya Pradesh [2007 (2) MPJR 229 (DB) (MP)]. - The Tribunal only directed the AO to verify whether payment has been made and if satisfied to grant deduction.', 'caseanalysis' => null, 'casesref' => '', 'citingcases' => '', 'counselplain' => '', 'counseldef' => '', 'court' => 'Madhya Pradesh', 'court_type' => 'HC', 'decidedon' => '1995-09-27', 'deposition' => '', 'favorof' => null, 'findings' => null, 'judge' => '', 'judgement' => 'ORDER<p>BY THE COURT :</p><p>These are applications filed by the Revenue under s. 256(2) of the IT Act, 1961, for stating the case and to make reference of the following common questions :</p><p>'(i) Whether, on the facts and in the circumstances of the case, the Tribunal was justified in holding that ginning and pressing charges received from the members is allowable as an exemption though it was with the aid of power ?</p><p>(ii) Whether, on the facts and in the circumstances of the case, the Tribunal was justified in holding that the claim of the assessee though not admissible within the provisions of s. 80P(2)(v) but is admissible under s. 80P(2)(a)(iii) </p><p>(iii) Whether, on the facts and in the circumstances of the case, the Tribunal was justified in deleting interest under s. 217 </p><p>(iv) Whether, on the facts and in the circumstances of the case, the Tribunal was justified in deleting interest under s. 217 </p><p>(v) Whether, on the facts and in the circumstances of the case, Tribunal was justified in directing the Assessing Officer to verify the claim and to allow it the payment of sales-tax, central sales-tax, and entry-tax has been made before filing the returns under s. 139(1) even when the proviso was introduced w.e.f. 1st April, 1988, and not for the earlier years </p><p>(vi) Whether, on the facts and in the circumstances of the case, Tribunal was justified in deleting the penalty amounting to Rs. 1,30,000 on the ground that the foundation of levy of penalty does stand even when the Department has not accepted the same ?'</p><p>2. We have heard learned senior standing counsel for the Revenue. The assessee involved in these case is a co-operative society. The assessment years are during the period 1981 to 1985. Questions 1 and 2 are practically a repetition of the same question. Question No. 4 is a repetition of question No. 3. Therefore, the question No. 4 is deleted. Questions 5 and 6 are renumbered as question Nos. 4 and 5.</p><p>3. The assessee is a co-operative society whose members are cotton growers. The society has been established to help the members in the matter of ginning and pressing cotton and finding market for the processed cotton. The society charges fee for ginning and pressing and also collects a fee for assessing the marketing operations from members. The society contended that it is engaged in marketing of agricultural produce of its members and also processing the agricultural produce of its members and, therefore, it is entitled for deduction of the whole of amount of profit and gains of business attributable to such activities from the assessable income under s. 80P(2) of the Act. The Assessing Officer (AO) negatived this claim on the ground that s. 80P(2)(v) can be invoked only where the processing is done without the aid of power and since processing is done by the assessee with the aid of power, deduction cannot be granted. The appellate authority and the Tribunal took the view that deduction has to be granted under s. 80P(2)(iii) of the Act since the society is engaged in marketing of agricultural produce of its members. It is this decision which has given rise to question Nos. 1 and 2. Question No. 3 is incidental to the answers to question Nos. 1 and 2.</p><p>4. Sec. 43B of the Act states, inter alia, that where sales-tax, central sales-tax and entry-tax is alleged to be paid, deduction is to be given only on actual payment and not on the basis of subsistence of liability. The AO held that payment is not proved and deleted deduction. Tribunal directed him to enquire under the question as to what extent payment has been made and to give deduction to the actual payment made. This decision has led to question No. 4. Question No. 5 is incidental to the answers to other questions.</p><p>5. The order of the Tribunal makes it abundantly clear that deduction is granted in regard to profits from the ginning and pressing operation only because the society is engaged in marketing of agricultural produce of its members. This is under s. 80P(2)(iii) of the Act. The condition that processing shall be done without the aid of the power, seen in sub-cl. (v), is not a condition precedent with reference to sub-cl. (iii). This matter has been clarified by the Supreme Court with reference to the provisions of the Act as they stood prior to 1968 amendment [see Broach Distt. Co-operative Cotton Sales Ginning & Pressing Society Ltd. vs . CIT : [1989]177ITR418(SC) ]. In regard to the controversy arising in these cases, the amendment has not made any practical difference. The question is, therefore, covered by the decision of the Supreme Court and cannot be said to arise.</p><p>6. The Tribunal has not granted deduction to the assessee under s. 43B of the Act in regard to the alleged payments of sales-tax, central sales-tax and entry-tax. The Tribunal only directed the AO to verify whether payment has been made and if satisfied to grant deduction. This part of the decision of the Tribunal cannot be said to have given rise to any question of law. Other questions are incidental to the alleged main questions and do not require independent consideration.</p><p>7. For the reasons indicated above, we hold that no question of law calling for stating the case and making a reference arises for consideration in these cases. Applications are accordingly dismissed.<p></p><p>', 'observations' => null, 'overruledby' => null, 'prhistory' => '', 'pubs' => '(1996)130CTR(MP)431', 'ratiodecidendi' => '', 'respondent' => 'Co-operative Processing and Marketing Society.', 'sub' => 'Direct Taxation', 'link' => null, 'circuit' => null ) ) $casename_url = 'commissioner-income-tax-vs-operative-processing' $args = array( (int) 0 => '510422', (int) 1 => 'commissioner-income-tax-vs-operative-processing' ) $url = 'https://sooperkanoon.com/case/amp/510422/commissioner-income-tax-vs-operative-processing' $ctype = ' High Court' $content = array( (int) 0 => 'ORDER<p>BY THE COURT :', (int) 1 => '<p>These are applications filed by the Revenue under s. 256(2) of the IT Act, 1961, for stating the case and to make reference of the following common questions :', (int) 2 => '<p>'(i) Whether, on the facts and in the circumstances of the case, the Tribunal was justified in holding that ginning and pressing charges received from the members is allowable as an exemption though it was with the aid of power ?', (int) 3 => '<p>(ii) Whether, on the facts and in the circumstances of the case, the Tribunal was justified in holding that the claim of the assessee though not admissible within the provisions of s. 80P(2)(v) but is admissible under s. 80P(2)(a)(iii) ', (int) 4 => '<p>(iii) Whether, on the facts and in the circumstances of the case, the Tribunal was justified in deleting interest under s. 217 ', (int) 5 => '<p>(iv) Whether, on the facts and in the circumstances of the case, the Tribunal was justified in deleting interest under s. 217 ', (int) 6 => '<p>(v) Whether, on the facts and in the circumstances of the case, Tribunal was justified in directing the Assessing Officer to verify the claim and to allow it the payment of sales-tax, central sales-tax, and entry-tax has been made before filing the returns under s. 139(1) even when the proviso was introduced w.e.f. 1st April, 1988, and not for the earlier years ', (int) 7 => '<p>(vi) Whether, on the facts and in the circumstances of the case, Tribunal was justified in deleting the penalty amounting to Rs. 1,30,000 on the ground that the foundation of levy of penalty does stand even when the Department has not accepted the same ?'', (int) 8 => '<p>2. We have heard learned senior standing counsel for the Revenue. The assessee involved in these case is a co-operative society. The assessment years are during the period 1981 to 1985. Questions 1 and 2 are practically a repetition of the same question. Question No. 4 is a repetition of question No. 3. Therefore, the question No. 4 is deleted. Questions 5 and 6 are renumbered as question Nos. 4 and 5.', (int) 9 => '<p>3. The assessee is a co-operative society whose members are cotton growers. The society has been established to help the members in the matter of ginning and pressing cotton and finding market for the processed cotton. The society charges fee for ginning and pressing and also collects a fee for assessing the marketing operations from members. The society contended that it is engaged in marketing of agricultural produce of its members and also processing the agricultural produce of its members and, therefore, it is entitled for deduction of the whole of amount of profit and gains of business attributable to such activities from the assessable income under s. 80P(2) of the Act. The Assessing Officer (AO) negatived this claim on the ground that s. 80P(2)(v) can be invoked only where the processing is done without the aid of power and since processing is done by the assessee with the aid of power, deduction cannot be granted. The appellate authority and the Tribunal took the view that deduction has to be granted under s. 80P(2)(iii) of the Act since the society is engaged in marketing of agricultural produce of its members. It is this decision which has given rise to question Nos. 1 and 2. Question No. 3 is incidental to the answers to question Nos. 1 and 2.', (int) 10 => '<p>4. Sec. 43B of the Act states, inter alia, that where sales-tax, central sales-tax and entry-tax is alleged to be paid, deduction is to be given only on actual payment and not on the basis of subsistence of liability. The AO held that payment is not proved and deleted deduction. Tribunal directed him to enquire under the question as to what extent payment has been made and to give deduction to the actual payment made. This decision has led to question No. 4. Question No. 5 is incidental to the answers to other questions.', (int) 11 => '<p>5. The order of the Tribunal makes it abundantly clear that deduction is granted in regard to profits from the ginning and pressing operation only because the society is engaged in marketing of agricultural produce of its members. This is under s. 80P(2)(iii) of the Act. The condition that processing shall be done without the aid of the power, seen in sub-cl. (v), is not a condition precedent with reference to sub-cl. (iii). This matter has been clarified by the Supreme Court with reference to the provisions of the Act as they stood prior to 1968 amendment [see Broach Distt. Co-operative Cotton Sales Ginning & Pressing Society Ltd. vs . CIT : [1989]177ITR418(SC) ]. In regard to the controversy arising in these cases, the amendment has not made any practical difference. The question is, therefore, covered by the decision of the Supreme Court and cannot be said to arise.', (int) 12 => '<p>6. The Tribunal has not granted deduction to the assessee under s. 43B of the Act in regard to the alleged payments of sales-tax, central sales-tax and entry-tax. The Tribunal only directed the AO to verify whether payment has been made and if satisfied to grant deduction. This part of the decision of the Tribunal cannot be said to have given rise to any question of law. Other questions are incidental to the alleged main questions and do not require independent consideration.', (int) 13 => '<p>7. For the reasons indicated above, we hold that no question of law calling for stating the case and making a reference arises for consideration in these cases. Applications are accordingly dismissed.<p>', (int) 14 => '<p>' ) $paragraphAfter = (int) 1 $cnt = (int) 15 $i = (int) 2include - APP/View/Case/amp.ctp, line 144 View::_evaluate() - CORE/Cake/View/View.php, line 971 View::_render() - CORE/Cake/View/View.php, line 933 View::render() - CORE/Cake/View/View.php, line 473 Controller::render() - CORE/Cake/Controller/Controller.php, line 963 Dispatcher::_invoke() - CORE/Cake/Routing/Dispatcher.php, line 200 Dispatcher::dispatch() - CORE/Cake/Routing/Dispatcher.php, line 167 [main] - APP/webroot/index.php, line 109
'(i) Whether, on the facts and in the circumstances of the case, the Tribunal was justified in holding that ginning and pressing charges received from the members is allowable as an exemption though it was with the aid of power ?
Notice (8): Undefined variable: query [APP/View/Case/amp.ctp, line 144]Code Contextecho $this->Adsense->display('responsive_rect');}echo html_entity_decode($this->Wand->highlight($content[$i], $query));$viewFile = '/home/legalcrystal/app/View/Case/amp.ctp' $dataForView = array( 'title_for_layout' => 'Commissioner of Income Tax Vs Co Operative Processing and Marketing Society - Citation 510422 - Court Judgment | ', 'desc' => array( 'Judgement' => array( 'id' => '510422', 'acts' => '', 'appealno' => 'MCC No. 563 of 1995 & other connected cases, 27th September, 1995', 'appellant' => 'Commissioner of Income Tax', 'authreffered' => '', 'casename' => 'Commissioner of Income Tax Vs. Co-operative Processing and Marketing Society.', 'casenote' => ' - CONSTITUTION OF INDIA 1055. Article 141; [A.K. Patnaik, C.J., Dipak Misra, Abhay Gohil, S. Samvatsar, & S.K. Gangele, JJ] Dismissal of SLP arising from decision of High Court Whether binding precedent Decision of Division Bench in Rama and Company v. State of Madhya Pradesh, [2007(II) MPJR 229] overruled by Full Bench of same High Court Prior to delivery of decision of Full Bench order passed in Division Bench decision assailed in SLP before Supreme Court Dismissal of SLP by short reasoned order, though declaration of law, but High Court is bound to follow earlier decisions in field regard being had to concept of precedents as per law laid down by Apex Court and Larger bench decision in Jabalpur Bus Operators Association, reported in [2003(1) MPJR 158]. Court clarifies that Dr. Jaidev Siddha v. Jaiprakash Siddha, 2007(2) MPJR (FB) 361; AIR 2007 MP 269 (FB) is not impliedly overruled in view of dismissal of SLP Articles 226 & 227; [A.K. Patnaik, C.J., Dipak Misra, Abhay Gohil, S. Samvatsar, & S.K. Gangele, JJ] Power to issue writ under Article 226 - [per Majority] The High Courts exercise original jurisdiction under Article 226 of the Constitution and supervisory jurisdiction and the power of superintendence under Article 227 of the Constitution. But, an eloquent and fertile one, a writ of certiorari is issued in exercise of original jurisdiction. Whenever word supervisory has been used in the context of Article 226 it is in contrast with the appellate or revisional jurisdiction. When a writ is issued under Article 226 of the Constitution in respect of Courts or tribunals it is done in exercise of original jurisdiction and the parameters are different than Article 227 of the Constitution of India. It is worth noting that the power under Article 227 was there in a different manner under the Government of India Act. Power of superintendence is distinct from the exercise of power of revisional or supervisory jurisdiction which is a facet of the power of superintendence. The confusion occurs when one applies the principle of equivalence or equates the exercise of supervisory power and power of superintendence with original or supervisory jurisdiction. There is an acceptable nuance between the concept of jurisdiction and exercise of power by certain parameters. Both do come within the fundamental concept of judicial review but the jurisdiction exercised is different when under Article 226 a writ is issued it is issued in exercise of original jurisdiction whether against a tribunal or inferior Courts or administrative authorities. The word superintendence has not been used in Article 226 of the Constitution. It is also evident that the term writs is not referred to in Article 227. On a scrutiny of Article 227 it would be crystal clear that power of superintendence conferred on the High Courts is a power that is restricted to the Courts and tribunal in relation to which it exercises jurisdiction. On the contrary the power conferred on the High Court under Article 226 is not constricted and confined to the Courts and tribunals but it extends to any person or authority. Be it noted, Article 226 as has been engrafted in the Constitution covers entirely a new area, a broader one in a larger spectrum. When the Legislature has used the terms in exercise of original jurisdiction and supervisory jurisdiction it has to be understood that they are used in contradistinction in the constitutional context as has been interpreted by the Apex Court. The words of the Section have to be understood to mean exercise of powers under Article 226 of the Constitution of India which is always original. -- M.P. SAMAJ KE KAMJOR VARGON KE KRISHI BHUMI HADAPNE SAMBANDHI KUCHAKRON SE PARITRAN TATHA MUKTI ADHINIYAM [3/1977]. Section 2: Writ appeal Maintainability from order of single Judge-When permissible Held, Maintainability of a writ appeal from an order of the learned single Judge would depend upon many an aspect and cannot be put into a strait jacket formula. It cannot be stated with mathematical exactitude. It would depend upon the pleadings in the writ petition, nature of the order passed by the single Judge, character and the contour of the order, directions issued, nomenclature given and the jurisdictional prospective in the constitutional context are to be perceived. It cannot be said in a hyper-technical manner that an order passed in a writ petition, if there is assail to the order emerging from the inferior tribunal or subordinate Courts has to be treated all the time for all purposes to be under Article 227 of the Constitution of India. It would depend upon the real nature of the order passed by the learned single Judge. The pleadings also assume immense significance. It would not be an over emphasis to state that an order in a writ petition can fit into the subtle contour of Articles 226 and 227 of the Constitution in a composite manner and they can co-inside, co-exist, overlap or imbricate. In this context it is apt to note that there may be cases where the single Judge may feel disposed or inclined to issue a writ to do full and complete justice because it is to be borne in mind that Article 226 of the Constitution is fundamentally a repository and reservoir of justice based on equity and good conscience. It will depend upon factual matrix of each case. Dr. Jaidev Siddha v. Jaiprakash Siddha, 2007(2) MPJR (FB) 361: AIR 2007 MP 269 (FB) is not impliedly overruled in view of dismissal of SLP preferred against order reported in Rama and Company v. State of Madhya Pradesh [2007 (2) MPJR 229 (DB) (MP)]. - The Tribunal only directed the AO to verify whether payment has been made and if satisfied to grant deduction.', 'caseanalysis' => null, 'casesref' => '', 'citingcases' => '', 'counselplain' => '', 'counseldef' => '', 'court' => 'Madhya Pradesh', 'court_type' => 'HC', 'decidedon' => '1995-09-27', 'deposition' => '', 'favorof' => null, 'findings' => null, 'judge' => '', 'judgement' => 'ORDER<p style="text-align: justify;">BY THE COURT :</p><p style="text-align: justify;">These are applications filed by the Revenue under s. 256(2) of the IT Act, 1961, for stating the case and to make reference of the following common questions :</p><p style="text-align: justify;">'(i) Whether, on the facts and in the circumstances of the case, the Tribunal was justified in holding that ginning and pressing charges received from the members is allowable as an exemption though it was with the aid of power ?</p><p style="text-align: justify;">(ii) Whether, on the facts and in the circumstances of the case, the Tribunal was justified in holding that the claim of the assessee though not admissible within the provisions of s. 80P(2)(v) but is admissible under s. 80P(2)(a)(iii) </p><p style="text-align: justify;">(iii) Whether, on the facts and in the circumstances of the case, the Tribunal was justified in deleting interest under s. 217 </p><p style="text-align: justify;">(iv) Whether, on the facts and in the circumstances of the case, the Tribunal was justified in deleting interest under s. 217 </p><p style="text-align: justify;">(v) Whether, on the facts and in the circumstances of the case, Tribunal was justified in directing the Assessing Officer to verify the claim and to allow it the payment of sales-tax, central sales-tax, and entry-tax has been made before filing the returns under s. 139(1) even when the proviso was introduced w.e.f. 1st April, 1988, and not for the earlier years </p><p style="text-align: justify;">(vi) Whether, on the facts and in the circumstances of the case, Tribunal was justified in deleting the penalty amounting to Rs. 1,30,000 on the ground that the foundation of levy of penalty does stand even when the Department has not accepted the same ?'</p><p style="text-align: justify;">2. We have heard learned senior standing counsel for the Revenue. The assessee involved in these case is a co-operative society. The assessment years are during the period 1981 to 1985. Questions 1 and 2 are practically a repetition of the same question. Question No. 4 is a repetition of question No. 3. Therefore, the question No. 4 is deleted. Questions 5 and 6 are renumbered as question Nos. 4 and 5.</p><p style="text-align: justify;">3. The assessee is a co-operative society whose members are cotton growers. The society has been established to help the members in the matter of ginning and pressing cotton and finding market for the processed cotton. The society charges fee for ginning and pressing and also collects a fee for assessing the marketing operations from members. The society contended that it is engaged in marketing of agricultural produce of its members and also processing the agricultural produce of its members and, therefore, it is entitled for deduction of the whole of amount of profit and gains of business attributable to such activities from the assessable income under s. 80P(2) of the Act. The Assessing Officer (AO) negatived this claim on the ground that s. 80P(2)(v) can be invoked only where the processing is done without the aid of power and since processing is done by the assessee with the aid of power, deduction cannot be granted. The appellate authority and the Tribunal took the view that deduction has to be granted under s. 80P(2)(iii) of the Act since the society is engaged in marketing of agricultural produce of its members. It is this decision which has given rise to question Nos. 1 and 2. Question No. 3 is incidental to the answers to question Nos. 1 and 2.</p><p style="text-align: justify;">4. Sec. 43B of the Act states, inter alia, that where sales-tax, central sales-tax and entry-tax is alleged to be paid, deduction is to be given only on actual payment and not on the basis of subsistence of liability. The AO held that payment is not proved and deleted deduction. Tribunal directed him to enquire under the question as to what extent payment has been made and to give deduction to the actual payment made. This decision has led to question No. 4. Question No. 5 is incidental to the answers to other questions.</p><p style="text-align: justify;">5. The order of the Tribunal makes it abundantly clear that deduction is granted in regard to profits from the ginning and pressing operation only because the society is engaged in marketing of agricultural produce of its members. This is under s. 80P(2)(iii) of the Act. The condition that processing shall be done without the aid of the power, seen in sub-cl. (v), is not a condition precedent with reference to sub-cl. (iii). This matter has been clarified by the Supreme Court with reference to the provisions of the Act as they stood prior to 1968 amendment [see Broach Distt. Co-operative Cotton Sales Ginning & Pressing Society Ltd. vs . CIT : [1989]177ITR418(SC) ]. In regard to the controversy arising in these cases, the amendment has not made any practical difference. The question is, therefore, covered by the decision of the Supreme Court and cannot be said to arise.</p><p style="text-align: justify;">6. The Tribunal has not granted deduction to the assessee under s. 43B of the Act in regard to the alleged payments of sales-tax, central sales-tax and entry-tax. The Tribunal only directed the AO to verify whether payment has been made and if satisfied to grant deduction. This part of the decision of the Tribunal cannot be said to have given rise to any question of law. Other questions are incidental to the alleged main questions and do not require independent consideration.</p><p style="text-align: justify;">7. For the reasons indicated above, we hold that no question of law calling for stating the case and making a reference arises for consideration in these cases. Applications are accordingly dismissed.<p style="text-align: justify;"></p><p style="text-align: justify;">', 'observations' => null, 'overruledby' => null, 'prhistory' => '', 'pubs' => '(1996)130CTR(MP)431', 'ratiodecidendi' => '', 'respondent' => 'Co-operative Processing and Marketing Society.', 'sub' => 'Direct Taxation', 'link' => null, 'circuit' => null ) ), 'casename_url' => 'commissioner-income-tax-vs-operative-processing', 'args' => array( (int) 0 => '510422', (int) 1 => 'commissioner-income-tax-vs-operative-processing' ) ) $title_for_layout = 'Commissioner of Income Tax Vs Co Operative Processing and Marketing Society - Citation 510422 - Court Judgment | ' $desc = array( 'Judgement' => array( 'id' => '510422', 'acts' => '', 'appealno' => 'MCC No. 563 of 1995 & other connected cases, 27th September, 1995', 'appellant' => 'Commissioner of Income Tax', 'authreffered' => '', 'casename' => 'Commissioner of Income Tax Vs. Co-operative Processing and Marketing Society.', 'casenote' => ' - CONSTITUTION OF INDIA 1055. Article 141; [A.K. Patnaik, C.J., Dipak Misra, Abhay Gohil, S. Samvatsar, & S.K. Gangele, JJ] Dismissal of SLP arising from decision of High Court Whether binding precedent Decision of Division Bench in Rama and Company v. State of Madhya Pradesh, [2007(II) MPJR 229] overruled by Full Bench of same High Court Prior to delivery of decision of Full Bench order passed in Division Bench decision assailed in SLP before Supreme Court Dismissal of SLP by short reasoned order, though declaration of law, but High Court is bound to follow earlier decisions in field regard being had to concept of precedents as per law laid down by Apex Court and Larger bench decision in Jabalpur Bus Operators Association, reported in [2003(1) MPJR 158]. Court clarifies that Dr. Jaidev Siddha v. Jaiprakash Siddha, 2007(2) MPJR (FB) 361; AIR 2007 MP 269 (FB) is not impliedly overruled in view of dismissal of SLP Articles 226 & 227; [A.K. Patnaik, C.J., Dipak Misra, Abhay Gohil, S. Samvatsar, & S.K. Gangele, JJ] Power to issue writ under Article 226 - [per Majority] The High Courts exercise original jurisdiction under Article 226 of the Constitution and supervisory jurisdiction and the power of superintendence under Article 227 of the Constitution. But, an eloquent and fertile one, a writ of certiorari is issued in exercise of original jurisdiction. Whenever word supervisory has been used in the context of Article 226 it is in contrast with the appellate or revisional jurisdiction. When a writ is issued under Article 226 of the Constitution in respect of Courts or tribunals it is done in exercise of original jurisdiction and the parameters are different than Article 227 of the Constitution of India. It is worth noting that the power under Article 227 was there in a different manner under the Government of India Act. Power of superintendence is distinct from the exercise of power of revisional or supervisory jurisdiction which is a facet of the power of superintendence. The confusion occurs when one applies the principle of equivalence or equates the exercise of supervisory power and power of superintendence with original or supervisory jurisdiction. There is an acceptable nuance between the concept of jurisdiction and exercise of power by certain parameters. Both do come within the fundamental concept of judicial review but the jurisdiction exercised is different when under Article 226 a writ is issued it is issued in exercise of original jurisdiction whether against a tribunal or inferior Courts or administrative authorities. The word superintendence has not been used in Article 226 of the Constitution. It is also evident that the term writs is not referred to in Article 227. On a scrutiny of Article 227 it would be crystal clear that power of superintendence conferred on the High Courts is a power that is restricted to the Courts and tribunal in relation to which it exercises jurisdiction. On the contrary the power conferred on the High Court under Article 226 is not constricted and confined to the Courts and tribunals but it extends to any person or authority. Be it noted, Article 226 as has been engrafted in the Constitution covers entirely a new area, a broader one in a larger spectrum. When the Legislature has used the terms in exercise of original jurisdiction and supervisory jurisdiction it has to be understood that they are used in contradistinction in the constitutional context as has been interpreted by the Apex Court. The words of the Section have to be understood to mean exercise of powers under Article 226 of the Constitution of India which is always original. -- M.P. SAMAJ KE KAMJOR VARGON KE KRISHI BHUMI HADAPNE SAMBANDHI KUCHAKRON SE PARITRAN TATHA MUKTI ADHINIYAM [3/1977]. Section 2: Writ appeal Maintainability from order of single Judge-When permissible Held, Maintainability of a writ appeal from an order of the learned single Judge would depend upon many an aspect and cannot be put into a strait jacket formula. It cannot be stated with mathematical exactitude. It would depend upon the pleadings in the writ petition, nature of the order passed by the single Judge, character and the contour of the order, directions issued, nomenclature given and the jurisdictional prospective in the constitutional context are to be perceived. It cannot be said in a hyper-technical manner that an order passed in a writ petition, if there is assail to the order emerging from the inferior tribunal or subordinate Courts has to be treated all the time for all purposes to be under Article 227 of the Constitution of India. It would depend upon the real nature of the order passed by the learned single Judge. The pleadings also assume immense significance. It would not be an over emphasis to state that an order in a writ petition can fit into the subtle contour of Articles 226 and 227 of the Constitution in a composite manner and they can co-inside, co-exist, overlap or imbricate. In this context it is apt to note that there may be cases where the single Judge may feel disposed or inclined to issue a writ to do full and complete justice because it is to be borne in mind that Article 226 of the Constitution is fundamentally a repository and reservoir of justice based on equity and good conscience. It will depend upon factual matrix of each case. Dr. Jaidev Siddha v. Jaiprakash Siddha, 2007(2) MPJR (FB) 361: AIR 2007 MP 269 (FB) is not impliedly overruled in view of dismissal of SLP preferred against order reported in Rama and Company v. State of Madhya Pradesh [2007 (2) MPJR 229 (DB) (MP)]. - The Tribunal only directed the AO to verify whether payment has been made and if satisfied to grant deduction.', 'caseanalysis' => null, 'casesref' => '', 'citingcases' => '', 'counselplain' => '', 'counseldef' => '', 'court' => 'Madhya Pradesh', 'court_type' => 'HC', 'decidedon' => '1995-09-27', 'deposition' => '', 'favorof' => null, 'findings' => null, 'judge' => '', 'judgement' => 'ORDER<p>BY THE COURT :</p><p>These are applications filed by the Revenue under s. 256(2) of the IT Act, 1961, for stating the case and to make reference of the following common questions :</p><p>'(i) Whether, on the facts and in the circumstances of the case, the Tribunal was justified in holding that ginning and pressing charges received from the members is allowable as an exemption though it was with the aid of power ?</p><p>(ii) Whether, on the facts and in the circumstances of the case, the Tribunal was justified in holding that the claim of the assessee though not admissible within the provisions of s. 80P(2)(v) but is admissible under s. 80P(2)(a)(iii) </p><p>(iii) Whether, on the facts and in the circumstances of the case, the Tribunal was justified in deleting interest under s. 217 </p><p>(iv) Whether, on the facts and in the circumstances of the case, the Tribunal was justified in deleting interest under s. 217 </p><p>(v) Whether, on the facts and in the circumstances of the case, Tribunal was justified in directing the Assessing Officer to verify the claim and to allow it the payment of sales-tax, central sales-tax, and entry-tax has been made before filing the returns under s. 139(1) even when the proviso was introduced w.e.f. 1st April, 1988, and not for the earlier years </p><p>(vi) Whether, on the facts and in the circumstances of the case, Tribunal was justified in deleting the penalty amounting to Rs. 1,30,000 on the ground that the foundation of levy of penalty does stand even when the Department has not accepted the same ?'</p><p>2. We have heard learned senior standing counsel for the Revenue. The assessee involved in these case is a co-operative society. The assessment years are during the period 1981 to 1985. Questions 1 and 2 are practically a repetition of the same question. Question No. 4 is a repetition of question No. 3. Therefore, the question No. 4 is deleted. Questions 5 and 6 are renumbered as question Nos. 4 and 5.</p><p>3. The assessee is a co-operative society whose members are cotton growers. The society has been established to help the members in the matter of ginning and pressing cotton and finding market for the processed cotton. The society charges fee for ginning and pressing and also collects a fee for assessing the marketing operations from members. The society contended that it is engaged in marketing of agricultural produce of its members and also processing the agricultural produce of its members and, therefore, it is entitled for deduction of the whole of amount of profit and gains of business attributable to such activities from the assessable income under s. 80P(2) of the Act. The Assessing Officer (AO) negatived this claim on the ground that s. 80P(2)(v) can be invoked only where the processing is done without the aid of power and since processing is done by the assessee with the aid of power, deduction cannot be granted. The appellate authority and the Tribunal took the view that deduction has to be granted under s. 80P(2)(iii) of the Act since the society is engaged in marketing of agricultural produce of its members. It is this decision which has given rise to question Nos. 1 and 2. Question No. 3 is incidental to the answers to question Nos. 1 and 2.</p><p>4. Sec. 43B of the Act states, inter alia, that where sales-tax, central sales-tax and entry-tax is alleged to be paid, deduction is to be given only on actual payment and not on the basis of subsistence of liability. The AO held that payment is not proved and deleted deduction. Tribunal directed him to enquire under the question as to what extent payment has been made and to give deduction to the actual payment made. This decision has led to question No. 4. Question No. 5 is incidental to the answers to other questions.</p><p>5. The order of the Tribunal makes it abundantly clear that deduction is granted in regard to profits from the ginning and pressing operation only because the society is engaged in marketing of agricultural produce of its members. This is under s. 80P(2)(iii) of the Act. The condition that processing shall be done without the aid of the power, seen in sub-cl. (v), is not a condition precedent with reference to sub-cl. (iii). This matter has been clarified by the Supreme Court with reference to the provisions of the Act as they stood prior to 1968 amendment [see Broach Distt. Co-operative Cotton Sales Ginning & Pressing Society Ltd. vs . CIT : [1989]177ITR418(SC) ]. In regard to the controversy arising in these cases, the amendment has not made any practical difference. The question is, therefore, covered by the decision of the Supreme Court and cannot be said to arise.</p><p>6. The Tribunal has not granted deduction to the assessee under s. 43B of the Act in regard to the alleged payments of sales-tax, central sales-tax and entry-tax. The Tribunal only directed the AO to verify whether payment has been made and if satisfied to grant deduction. This part of the decision of the Tribunal cannot be said to have given rise to any question of law. Other questions are incidental to the alleged main questions and do not require independent consideration.</p><p>7. For the reasons indicated above, we hold that no question of law calling for stating the case and making a reference arises for consideration in these cases. Applications are accordingly dismissed.<p></p><p>', 'observations' => null, 'overruledby' => null, 'prhistory' => '', 'pubs' => '(1996)130CTR(MP)431', 'ratiodecidendi' => '', 'respondent' => 'Co-operative Processing and Marketing Society.', 'sub' => 'Direct Taxation', 'link' => null, 'circuit' => null ) ) $casename_url = 'commissioner-income-tax-vs-operative-processing' $args = array( (int) 0 => '510422', (int) 1 => 'commissioner-income-tax-vs-operative-processing' ) $url = 'https://sooperkanoon.com/case/amp/510422/commissioner-income-tax-vs-operative-processing' $ctype = ' High Court' $content = array( (int) 0 => 'ORDER<p>BY THE COURT :', (int) 1 => '<p>These are applications filed by the Revenue under s. 256(2) of the IT Act, 1961, for stating the case and to make reference of the following common questions :', (int) 2 => '<p>'(i) Whether, on the facts and in the circumstances of the case, the Tribunal was justified in holding that ginning and pressing charges received from the members is allowable as an exemption though it was with the aid of power ?', (int) 3 => '<p>(ii) Whether, on the facts and in the circumstances of the case, the Tribunal was justified in holding that the claim of the assessee though not admissible within the provisions of s. 80P(2)(v) but is admissible under s. 80P(2)(a)(iii) ', (int) 4 => '<p>(iii) Whether, on the facts and in the circumstances of the case, the Tribunal was justified in deleting interest under s. 217 ', (int) 5 => '<p>(iv) Whether, on the facts and in the circumstances of the case, the Tribunal was justified in deleting interest under s. 217 ', (int) 6 => '<p>(v) Whether, on the facts and in the circumstances of the case, Tribunal was justified in directing the Assessing Officer to verify the claim and to allow it the payment of sales-tax, central sales-tax, and entry-tax has been made before filing the returns under s. 139(1) even when the proviso was introduced w.e.f. 1st April, 1988, and not for the earlier years ', (int) 7 => '<p>(vi) Whether, on the facts and in the circumstances of the case, Tribunal was justified in deleting the penalty amounting to Rs. 1,30,000 on the ground that the foundation of levy of penalty does stand even when the Department has not accepted the same ?'', (int) 8 => '<p>2. We have heard learned senior standing counsel for the Revenue. The assessee involved in these case is a co-operative society. The assessment years are during the period 1981 to 1985. Questions 1 and 2 are practically a repetition of the same question. Question No. 4 is a repetition of question No. 3. Therefore, the question No. 4 is deleted. Questions 5 and 6 are renumbered as question Nos. 4 and 5.', (int) 9 => '<p>3. The assessee is a co-operative society whose members are cotton growers. The society has been established to help the members in the matter of ginning and pressing cotton and finding market for the processed cotton. The society charges fee for ginning and pressing and also collects a fee for assessing the marketing operations from members. The society contended that it is engaged in marketing of agricultural produce of its members and also processing the agricultural produce of its members and, therefore, it is entitled for deduction of the whole of amount of profit and gains of business attributable to such activities from the assessable income under s. 80P(2) of the Act. The Assessing Officer (AO) negatived this claim on the ground that s. 80P(2)(v) can be invoked only where the processing is done without the aid of power and since processing is done by the assessee with the aid of power, deduction cannot be granted. The appellate authority and the Tribunal took the view that deduction has to be granted under s. 80P(2)(iii) of the Act since the society is engaged in marketing of agricultural produce of its members. It is this decision which has given rise to question Nos. 1 and 2. Question No. 3 is incidental to the answers to question Nos. 1 and 2.', (int) 10 => '<p>4. Sec. 43B of the Act states, inter alia, that where sales-tax, central sales-tax and entry-tax is alleged to be paid, deduction is to be given only on actual payment and not on the basis of subsistence of liability. The AO held that payment is not proved and deleted deduction. Tribunal directed him to enquire under the question as to what extent payment has been made and to give deduction to the actual payment made. This decision has led to question No. 4. Question No. 5 is incidental to the answers to other questions.', (int) 11 => '<p>5. The order of the Tribunal makes it abundantly clear that deduction is granted in regard to profits from the ginning and pressing operation only because the society is engaged in marketing of agricultural produce of its members. This is under s. 80P(2)(iii) of the Act. The condition that processing shall be done without the aid of the power, seen in sub-cl. (v), is not a condition precedent with reference to sub-cl. (iii). This matter has been clarified by the Supreme Court with reference to the provisions of the Act as they stood prior to 1968 amendment [see Broach Distt. Co-operative Cotton Sales Ginning & Pressing Society Ltd. vs . CIT : [1989]177ITR418(SC) ]. In regard to the controversy arising in these cases, the amendment has not made any practical difference. The question is, therefore, covered by the decision of the Supreme Court and cannot be said to arise.', (int) 12 => '<p>6. The Tribunal has not granted deduction to the assessee under s. 43B of the Act in regard to the alleged payments of sales-tax, central sales-tax and entry-tax. The Tribunal only directed the AO to verify whether payment has been made and if satisfied to grant deduction. This part of the decision of the Tribunal cannot be said to have given rise to any question of law. Other questions are incidental to the alleged main questions and do not require independent consideration.', (int) 13 => '<p>7. For the reasons indicated above, we hold that no question of law calling for stating the case and making a reference arises for consideration in these cases. Applications are accordingly dismissed.<p>', (int) 14 => '<p>' ) $paragraphAfter = (int) 1 $cnt = (int) 15 $i = (int) 3include - APP/View/Case/amp.ctp, line 144 View::_evaluate() - CORE/Cake/View/View.php, line 971 View::_render() - CORE/Cake/View/View.php, line 933 View::render() - CORE/Cake/View/View.php, line 473 Controller::render() - CORE/Cake/Controller/Controller.php, line 963 Dispatcher::_invoke() - CORE/Cake/Routing/Dispatcher.php, line 200 Dispatcher::dispatch() - CORE/Cake/Routing/Dispatcher.php, line 167 [main] - APP/webroot/index.php, line 109
(ii) Whether, on the facts and in the circumstances of the case, the Tribunal was justified in holding that the claim of the assessee though not admissible within the provisions of s. 80P(2)(v) but is admissible under s. 80P(2)(a)(iii)
Notice (8): Undefined variable: query [APP/View/Case/amp.ctp, line 144]Code Contextecho $this->Adsense->display('responsive_rect');}echo html_entity_decode($this->Wand->highlight($content[$i], $query));$viewFile = '/home/legalcrystal/app/View/Case/amp.ctp' $dataForView = array( 'title_for_layout' => 'Commissioner of Income Tax Vs Co Operative Processing and Marketing Society - Citation 510422 - Court Judgment | ', 'desc' => array( 'Judgement' => array( 'id' => '510422', 'acts' => '', 'appealno' => 'MCC No. 563 of 1995 & other connected cases, 27th September, 1995', 'appellant' => 'Commissioner of Income Tax', 'authreffered' => '', 'casename' => 'Commissioner of Income Tax Vs. Co-operative Processing and Marketing Society.', 'casenote' => ' - CONSTITUTION OF INDIA 1055. Article 141; [A.K. Patnaik, C.J., Dipak Misra, Abhay Gohil, S. Samvatsar, & S.K. Gangele, JJ] Dismissal of SLP arising from decision of High Court Whether binding precedent Decision of Division Bench in Rama and Company v. State of Madhya Pradesh, [2007(II) MPJR 229] overruled by Full Bench of same High Court Prior to delivery of decision of Full Bench order passed in Division Bench decision assailed in SLP before Supreme Court Dismissal of SLP by short reasoned order, though declaration of law, but High Court is bound to follow earlier decisions in field regard being had to concept of precedents as per law laid down by Apex Court and Larger bench decision in Jabalpur Bus Operators Association, reported in [2003(1) MPJR 158]. Court clarifies that Dr. Jaidev Siddha v. Jaiprakash Siddha, 2007(2) MPJR (FB) 361; AIR 2007 MP 269 (FB) is not impliedly overruled in view of dismissal of SLP Articles 226 & 227; [A.K. Patnaik, C.J., Dipak Misra, Abhay Gohil, S. Samvatsar, & S.K. Gangele, JJ] Power to issue writ under Article 226 - [per Majority] The High Courts exercise original jurisdiction under Article 226 of the Constitution and supervisory jurisdiction and the power of superintendence under Article 227 of the Constitution. But, an eloquent and fertile one, a writ of certiorari is issued in exercise of original jurisdiction. Whenever word supervisory has been used in the context of Article 226 it is in contrast with the appellate or revisional jurisdiction. When a writ is issued under Article 226 of the Constitution in respect of Courts or tribunals it is done in exercise of original jurisdiction and the parameters are different than Article 227 of the Constitution of India. It is worth noting that the power under Article 227 was there in a different manner under the Government of India Act. Power of superintendence is distinct from the exercise of power of revisional or supervisory jurisdiction which is a facet of the power of superintendence. The confusion occurs when one applies the principle of equivalence or equates the exercise of supervisory power and power of superintendence with original or supervisory jurisdiction. There is an acceptable nuance between the concept of jurisdiction and exercise of power by certain parameters. Both do come within the fundamental concept of judicial review but the jurisdiction exercised is different when under Article 226 a writ is issued it is issued in exercise of original jurisdiction whether against a tribunal or inferior Courts or administrative authorities. The word superintendence has not been used in Article 226 of the Constitution. It is also evident that the term writs is not referred to in Article 227. On a scrutiny of Article 227 it would be crystal clear that power of superintendence conferred on the High Courts is a power that is restricted to the Courts and tribunal in relation to which it exercises jurisdiction. On the contrary the power conferred on the High Court under Article 226 is not constricted and confined to the Courts and tribunals but it extends to any person or authority. Be it noted, Article 226 as has been engrafted in the Constitution covers entirely a new area, a broader one in a larger spectrum. When the Legislature has used the terms in exercise of original jurisdiction and supervisory jurisdiction it has to be understood that they are used in contradistinction in the constitutional context as has been interpreted by the Apex Court. The words of the Section have to be understood to mean exercise of powers under Article 226 of the Constitution of India which is always original. -- M.P. SAMAJ KE KAMJOR VARGON KE KRISHI BHUMI HADAPNE SAMBANDHI KUCHAKRON SE PARITRAN TATHA MUKTI ADHINIYAM [3/1977]. Section 2: Writ appeal Maintainability from order of single Judge-When permissible Held, Maintainability of a writ appeal from an order of the learned single Judge would depend upon many an aspect and cannot be put into a strait jacket formula. It cannot be stated with mathematical exactitude. It would depend upon the pleadings in the writ petition, nature of the order passed by the single Judge, character and the contour of the order, directions issued, nomenclature given and the jurisdictional prospective in the constitutional context are to be perceived. It cannot be said in a hyper-technical manner that an order passed in a writ petition, if there is assail to the order emerging from the inferior tribunal or subordinate Courts has to be treated all the time for all purposes to be under Article 227 of the Constitution of India. It would depend upon the real nature of the order passed by the learned single Judge. The pleadings also assume immense significance. It would not be an over emphasis to state that an order in a writ petition can fit into the subtle contour of Articles 226 and 227 of the Constitution in a composite manner and they can co-inside, co-exist, overlap or imbricate. In this context it is apt to note that there may be cases where the single Judge may feel disposed or inclined to issue a writ to do full and complete justice because it is to be borne in mind that Article 226 of the Constitution is fundamentally a repository and reservoir of justice based on equity and good conscience. It will depend upon factual matrix of each case. Dr. Jaidev Siddha v. Jaiprakash Siddha, 2007(2) MPJR (FB) 361: AIR 2007 MP 269 (FB) is not impliedly overruled in view of dismissal of SLP preferred against order reported in Rama and Company v. State of Madhya Pradesh [2007 (2) MPJR 229 (DB) (MP)]. - The Tribunal only directed the AO to verify whether payment has been made and if satisfied to grant deduction.', 'caseanalysis' => null, 'casesref' => '', 'citingcases' => '', 'counselplain' => '', 'counseldef' => '', 'court' => 'Madhya Pradesh', 'court_type' => 'HC', 'decidedon' => '1995-09-27', 'deposition' => '', 'favorof' => null, 'findings' => null, 'judge' => '', 'judgement' => 'ORDER<p style="text-align: justify;">BY THE COURT :</p><p style="text-align: justify;">These are applications filed by the Revenue under s. 256(2) of the IT Act, 1961, for stating the case and to make reference of the following common questions :</p><p style="text-align: justify;">'(i) Whether, on the facts and in the circumstances of the case, the Tribunal was justified in holding that ginning and pressing charges received from the members is allowable as an exemption though it was with the aid of power ?</p><p style="text-align: justify;">(ii) Whether, on the facts and in the circumstances of the case, the Tribunal was justified in holding that the claim of the assessee though not admissible within the provisions of s. 80P(2)(v) but is admissible under s. 80P(2)(a)(iii) </p><p style="text-align: justify;">(iii) Whether, on the facts and in the circumstances of the case, the Tribunal was justified in deleting interest under s. 217 </p><p style="text-align: justify;">(iv) Whether, on the facts and in the circumstances of the case, the Tribunal was justified in deleting interest under s. 217 </p><p style="text-align: justify;">(v) Whether, on the facts and in the circumstances of the case, Tribunal was justified in directing the Assessing Officer to verify the claim and to allow it the payment of sales-tax, central sales-tax, and entry-tax has been made before filing the returns under s. 139(1) even when the proviso was introduced w.e.f. 1st April, 1988, and not for the earlier years </p><p style="text-align: justify;">(vi) Whether, on the facts and in the circumstances of the case, Tribunal was justified in deleting the penalty amounting to Rs. 1,30,000 on the ground that the foundation of levy of penalty does stand even when the Department has not accepted the same ?'</p><p style="text-align: justify;">2. We have heard learned senior standing counsel for the Revenue. The assessee involved in these case is a co-operative society. The assessment years are during the period 1981 to 1985. Questions 1 and 2 are practically a repetition of the same question. Question No. 4 is a repetition of question No. 3. Therefore, the question No. 4 is deleted. Questions 5 and 6 are renumbered as question Nos. 4 and 5.</p><p style="text-align: justify;">3. The assessee is a co-operative society whose members are cotton growers. The society has been established to help the members in the matter of ginning and pressing cotton and finding market for the processed cotton. The society charges fee for ginning and pressing and also collects a fee for assessing the marketing operations from members. The society contended that it is engaged in marketing of agricultural produce of its members and also processing the agricultural produce of its members and, therefore, it is entitled for deduction of the whole of amount of profit and gains of business attributable to such activities from the assessable income under s. 80P(2) of the Act. The Assessing Officer (AO) negatived this claim on the ground that s. 80P(2)(v) can be invoked only where the processing is done without the aid of power and since processing is done by the assessee with the aid of power, deduction cannot be granted. The appellate authority and the Tribunal took the view that deduction has to be granted under s. 80P(2)(iii) of the Act since the society is engaged in marketing of agricultural produce of its members. It is this decision which has given rise to question Nos. 1 and 2. Question No. 3 is incidental to the answers to question Nos. 1 and 2.</p><p style="text-align: justify;">4. Sec. 43B of the Act states, inter alia, that where sales-tax, central sales-tax and entry-tax is alleged to be paid, deduction is to be given only on actual payment and not on the basis of subsistence of liability. The AO held that payment is not proved and deleted deduction. Tribunal directed him to enquire under the question as to what extent payment has been made and to give deduction to the actual payment made. This decision has led to question No. 4. Question No. 5 is incidental to the answers to other questions.</p><p style="text-align: justify;">5. The order of the Tribunal makes it abundantly clear that deduction is granted in regard to profits from the ginning and pressing operation only because the society is engaged in marketing of agricultural produce of its members. This is under s. 80P(2)(iii) of the Act. The condition that processing shall be done without the aid of the power, seen in sub-cl. (v), is not a condition precedent with reference to sub-cl. (iii). This matter has been clarified by the Supreme Court with reference to the provisions of the Act as they stood prior to 1968 amendment [see Broach Distt. Co-operative Cotton Sales Ginning & Pressing Society Ltd. vs . CIT : [1989]177ITR418(SC) ]. In regard to the controversy arising in these cases, the amendment has not made any practical difference. The question is, therefore, covered by the decision of the Supreme Court and cannot be said to arise.</p><p style="text-align: justify;">6. The Tribunal has not granted deduction to the assessee under s. 43B of the Act in regard to the alleged payments of sales-tax, central sales-tax and entry-tax. The Tribunal only directed the AO to verify whether payment has been made and if satisfied to grant deduction. This part of the decision of the Tribunal cannot be said to have given rise to any question of law. Other questions are incidental to the alleged main questions and do not require independent consideration.</p><p style="text-align: justify;">7. For the reasons indicated above, we hold that no question of law calling for stating the case and making a reference arises for consideration in these cases. Applications are accordingly dismissed.<p style="text-align: justify;"></p><p style="text-align: justify;">', 'observations' => null, 'overruledby' => null, 'prhistory' => '', 'pubs' => '(1996)130CTR(MP)431', 'ratiodecidendi' => '', 'respondent' => 'Co-operative Processing and Marketing Society.', 'sub' => 'Direct Taxation', 'link' => null, 'circuit' => null ) ), 'casename_url' => 'commissioner-income-tax-vs-operative-processing', 'args' => array( (int) 0 => '510422', (int) 1 => 'commissioner-income-tax-vs-operative-processing' ) ) $title_for_layout = 'Commissioner of Income Tax Vs Co Operative Processing and Marketing Society - Citation 510422 - Court Judgment | ' $desc = array( 'Judgement' => array( 'id' => '510422', 'acts' => '', 'appealno' => 'MCC No. 563 of 1995 & other connected cases, 27th September, 1995', 'appellant' => 'Commissioner of Income Tax', 'authreffered' => '', 'casename' => 'Commissioner of Income Tax Vs. Co-operative Processing and Marketing Society.', 'casenote' => ' - CONSTITUTION OF INDIA 1055. Article 141; [A.K. Patnaik, C.J., Dipak Misra, Abhay Gohil, S. Samvatsar, & S.K. Gangele, JJ] Dismissal of SLP arising from decision of High Court Whether binding precedent Decision of Division Bench in Rama and Company v. State of Madhya Pradesh, [2007(II) MPJR 229] overruled by Full Bench of same High Court Prior to delivery of decision of Full Bench order passed in Division Bench decision assailed in SLP before Supreme Court Dismissal of SLP by short reasoned order, though declaration of law, but High Court is bound to follow earlier decisions in field regard being had to concept of precedents as per law laid down by Apex Court and Larger bench decision in Jabalpur Bus Operators Association, reported in [2003(1) MPJR 158]. Court clarifies that Dr. Jaidev Siddha v. Jaiprakash Siddha, 2007(2) MPJR (FB) 361; AIR 2007 MP 269 (FB) is not impliedly overruled in view of dismissal of SLP Articles 226 & 227; [A.K. Patnaik, C.J., Dipak Misra, Abhay Gohil, S. Samvatsar, & S.K. Gangele, JJ] Power to issue writ under Article 226 - [per Majority] The High Courts exercise original jurisdiction under Article 226 of the Constitution and supervisory jurisdiction and the power of superintendence under Article 227 of the Constitution. But, an eloquent and fertile one, a writ of certiorari is issued in exercise of original jurisdiction. Whenever word supervisory has been used in the context of Article 226 it is in contrast with the appellate or revisional jurisdiction. When a writ is issued under Article 226 of the Constitution in respect of Courts or tribunals it is done in exercise of original jurisdiction and the parameters are different than Article 227 of the Constitution of India. It is worth noting that the power under Article 227 was there in a different manner under the Government of India Act. Power of superintendence is distinct from the exercise of power of revisional or supervisory jurisdiction which is a facet of the power of superintendence. The confusion occurs when one applies the principle of equivalence or equates the exercise of supervisory power and power of superintendence with original or supervisory jurisdiction. There is an acceptable nuance between the concept of jurisdiction and exercise of power by certain parameters. Both do come within the fundamental concept of judicial review but the jurisdiction exercised is different when under Article 226 a writ is issued it is issued in exercise of original jurisdiction whether against a tribunal or inferior Courts or administrative authorities. The word superintendence has not been used in Article 226 of the Constitution. It is also evident that the term writs is not referred to in Article 227. On a scrutiny of Article 227 it would be crystal clear that power of superintendence conferred on the High Courts is a power that is restricted to the Courts and tribunal in relation to which it exercises jurisdiction. On the contrary the power conferred on the High Court under Article 226 is not constricted and confined to the Courts and tribunals but it extends to any person or authority. Be it noted, Article 226 as has been engrafted in the Constitution covers entirely a new area, a broader one in a larger spectrum. When the Legislature has used the terms in exercise of original jurisdiction and supervisory jurisdiction it has to be understood that they are used in contradistinction in the constitutional context as has been interpreted by the Apex Court. The words of the Section have to be understood to mean exercise of powers under Article 226 of the Constitution of India which is always original. -- M.P. SAMAJ KE KAMJOR VARGON KE KRISHI BHUMI HADAPNE SAMBANDHI KUCHAKRON SE PARITRAN TATHA MUKTI ADHINIYAM [3/1977]. Section 2: Writ appeal Maintainability from order of single Judge-When permissible Held, Maintainability of a writ appeal from an order of the learned single Judge would depend upon many an aspect and cannot be put into a strait jacket formula. It cannot be stated with mathematical exactitude. It would depend upon the pleadings in the writ petition, nature of the order passed by the single Judge, character and the contour of the order, directions issued, nomenclature given and the jurisdictional prospective in the constitutional context are to be perceived. It cannot be said in a hyper-technical manner that an order passed in a writ petition, if there is assail to the order emerging from the inferior tribunal or subordinate Courts has to be treated all the time for all purposes to be under Article 227 of the Constitution of India. It would depend upon the real nature of the order passed by the learned single Judge. The pleadings also assume immense significance. It would not be an over emphasis to state that an order in a writ petition can fit into the subtle contour of Articles 226 and 227 of the Constitution in a composite manner and they can co-inside, co-exist, overlap or imbricate. In this context it is apt to note that there may be cases where the single Judge may feel disposed or inclined to issue a writ to do full and complete justice because it is to be borne in mind that Article 226 of the Constitution is fundamentally a repository and reservoir of justice based on equity and good conscience. It will depend upon factual matrix of each case. Dr. Jaidev Siddha v. Jaiprakash Siddha, 2007(2) MPJR (FB) 361: AIR 2007 MP 269 (FB) is not impliedly overruled in view of dismissal of SLP preferred against order reported in Rama and Company v. State of Madhya Pradesh [2007 (2) MPJR 229 (DB) (MP)]. - The Tribunal only directed the AO to verify whether payment has been made and if satisfied to grant deduction.', 'caseanalysis' => null, 'casesref' => '', 'citingcases' => '', 'counselplain' => '', 'counseldef' => '', 'court' => 'Madhya Pradesh', 'court_type' => 'HC', 'decidedon' => '1995-09-27', 'deposition' => '', 'favorof' => null, 'findings' => null, 'judge' => '', 'judgement' => 'ORDER<p>BY THE COURT :</p><p>These are applications filed by the Revenue under s. 256(2) of the IT Act, 1961, for stating the case and to make reference of the following common questions :</p><p>'(i) Whether, on the facts and in the circumstances of the case, the Tribunal was justified in holding that ginning and pressing charges received from the members is allowable as an exemption though it was with the aid of power ?</p><p>(ii) Whether, on the facts and in the circumstances of the case, the Tribunal was justified in holding that the claim of the assessee though not admissible within the provisions of s. 80P(2)(v) but is admissible under s. 80P(2)(a)(iii) </p><p>(iii) Whether, on the facts and in the circumstances of the case, the Tribunal was justified in deleting interest under s. 217 </p><p>(iv) Whether, on the facts and in the circumstances of the case, the Tribunal was justified in deleting interest under s. 217 </p><p>(v) Whether, on the facts and in the circumstances of the case, Tribunal was justified in directing the Assessing Officer to verify the claim and to allow it the payment of sales-tax, central sales-tax, and entry-tax has been made before filing the returns under s. 139(1) even when the proviso was introduced w.e.f. 1st April, 1988, and not for the earlier years </p><p>(vi) Whether, on the facts and in the circumstances of the case, Tribunal was justified in deleting the penalty amounting to Rs. 1,30,000 on the ground that the foundation of levy of penalty does stand even when the Department has not accepted the same ?'</p><p>2. We have heard learned senior standing counsel for the Revenue. The assessee involved in these case is a co-operative society. The assessment years are during the period 1981 to 1985. Questions 1 and 2 are practically a repetition of the same question. Question No. 4 is a repetition of question No. 3. Therefore, the question No. 4 is deleted. Questions 5 and 6 are renumbered as question Nos. 4 and 5.</p><p>3. The assessee is a co-operative society whose members are cotton growers. The society has been established to help the members in the matter of ginning and pressing cotton and finding market for the processed cotton. The society charges fee for ginning and pressing and also collects a fee for assessing the marketing operations from members. The society contended that it is engaged in marketing of agricultural produce of its members and also processing the agricultural produce of its members and, therefore, it is entitled for deduction of the whole of amount of profit and gains of business attributable to such activities from the assessable income under s. 80P(2) of the Act. The Assessing Officer (AO) negatived this claim on the ground that s. 80P(2)(v) can be invoked only where the processing is done without the aid of power and since processing is done by the assessee with the aid of power, deduction cannot be granted. The appellate authority and the Tribunal took the view that deduction has to be granted under s. 80P(2)(iii) of the Act since the society is engaged in marketing of agricultural produce of its members. It is this decision which has given rise to question Nos. 1 and 2. Question No. 3 is incidental to the answers to question Nos. 1 and 2.</p><p>4. Sec. 43B of the Act states, inter alia, that where sales-tax, central sales-tax and entry-tax is alleged to be paid, deduction is to be given only on actual payment and not on the basis of subsistence of liability. The AO held that payment is not proved and deleted deduction. Tribunal directed him to enquire under the question as to what extent payment has been made and to give deduction to the actual payment made. This decision has led to question No. 4. Question No. 5 is incidental to the answers to other questions.</p><p>5. The order of the Tribunal makes it abundantly clear that deduction is granted in regard to profits from the ginning and pressing operation only because the society is engaged in marketing of agricultural produce of its members. This is under s. 80P(2)(iii) of the Act. The condition that processing shall be done without the aid of the power, seen in sub-cl. (v), is not a condition precedent with reference to sub-cl. (iii). This matter has been clarified by the Supreme Court with reference to the provisions of the Act as they stood prior to 1968 amendment [see Broach Distt. Co-operative Cotton Sales Ginning & Pressing Society Ltd. vs . CIT : [1989]177ITR418(SC) ]. In regard to the controversy arising in these cases, the amendment has not made any practical difference. The question is, therefore, covered by the decision of the Supreme Court and cannot be said to arise.</p><p>6. The Tribunal has not granted deduction to the assessee under s. 43B of the Act in regard to the alleged payments of sales-tax, central sales-tax and entry-tax. The Tribunal only directed the AO to verify whether payment has been made and if satisfied to grant deduction. This part of the decision of the Tribunal cannot be said to have given rise to any question of law. Other questions are incidental to the alleged main questions and do not require independent consideration.</p><p>7. For the reasons indicated above, we hold that no question of law calling for stating the case and making a reference arises for consideration in these cases. Applications are accordingly dismissed.<p></p><p>', 'observations' => null, 'overruledby' => null, 'prhistory' => '', 'pubs' => '(1996)130CTR(MP)431', 'ratiodecidendi' => '', 'respondent' => 'Co-operative Processing and Marketing Society.', 'sub' => 'Direct Taxation', 'link' => null, 'circuit' => null ) ) $casename_url = 'commissioner-income-tax-vs-operative-processing' $args = array( (int) 0 => '510422', (int) 1 => 'commissioner-income-tax-vs-operative-processing' ) $url = 'https://sooperkanoon.com/case/amp/510422/commissioner-income-tax-vs-operative-processing' $ctype = ' High Court' $content = array( (int) 0 => 'ORDER<p>BY THE COURT :', (int) 1 => '<p>These are applications filed by the Revenue under s. 256(2) of the IT Act, 1961, for stating the case and to make reference of the following common questions :', (int) 2 => '<p>'(i) Whether, on the facts and in the circumstances of the case, the Tribunal was justified in holding that ginning and pressing charges received from the members is allowable as an exemption though it was with the aid of power ?', (int) 3 => '<p>(ii) Whether, on the facts and in the circumstances of the case, the Tribunal was justified in holding that the claim of the assessee though not admissible within the provisions of s. 80P(2)(v) but is admissible under s. 80P(2)(a)(iii) ', (int) 4 => '<p>(iii) Whether, on the facts and in the circumstances of the case, the Tribunal was justified in deleting interest under s. 217 ', (int) 5 => '<p>(iv) Whether, on the facts and in the circumstances of the case, the Tribunal was justified in deleting interest under s. 217 ', (int) 6 => '<p>(v) Whether, on the facts and in the circumstances of the case, Tribunal was justified in directing the Assessing Officer to verify the claim and to allow it the payment of sales-tax, central sales-tax, and entry-tax has been made before filing the returns under s. 139(1) even when the proviso was introduced w.e.f. 1st April, 1988, and not for the earlier years ', (int) 7 => '<p>(vi) Whether, on the facts and in the circumstances of the case, Tribunal was justified in deleting the penalty amounting to Rs. 1,30,000 on the ground that the foundation of levy of penalty does stand even when the Department has not accepted the same ?'', (int) 8 => '<p>2. We have heard learned senior standing counsel for the Revenue. The assessee involved in these case is a co-operative society. The assessment years are during the period 1981 to 1985. Questions 1 and 2 are practically a repetition of the same question. Question No. 4 is a repetition of question No. 3. Therefore, the question No. 4 is deleted. Questions 5 and 6 are renumbered as question Nos. 4 and 5.', (int) 9 => '<p>3. The assessee is a co-operative society whose members are cotton growers. The society has been established to help the members in the matter of ginning and pressing cotton and finding market for the processed cotton. The society charges fee for ginning and pressing and also collects a fee for assessing the marketing operations from members. The society contended that it is engaged in marketing of agricultural produce of its members and also processing the agricultural produce of its members and, therefore, it is entitled for deduction of the whole of amount of profit and gains of business attributable to such activities from the assessable income under s. 80P(2) of the Act. The Assessing Officer (AO) negatived this claim on the ground that s. 80P(2)(v) can be invoked only where the processing is done without the aid of power and since processing is done by the assessee with the aid of power, deduction cannot be granted. The appellate authority and the Tribunal took the view that deduction has to be granted under s. 80P(2)(iii) of the Act since the society is engaged in marketing of agricultural produce of its members. It is this decision which has given rise to question Nos. 1 and 2. Question No. 3 is incidental to the answers to question Nos. 1 and 2.', (int) 10 => '<p>4. Sec. 43B of the Act states, inter alia, that where sales-tax, central sales-tax and entry-tax is alleged to be paid, deduction is to be given only on actual payment and not on the basis of subsistence of liability. The AO held that payment is not proved and deleted deduction. Tribunal directed him to enquire under the question as to what extent payment has been made and to give deduction to the actual payment made. This decision has led to question No. 4. Question No. 5 is incidental to the answers to other questions.', (int) 11 => '<p>5. The order of the Tribunal makes it abundantly clear that deduction is granted in regard to profits from the ginning and pressing operation only because the society is engaged in marketing of agricultural produce of its members. This is under s. 80P(2)(iii) of the Act. The condition that processing shall be done without the aid of the power, seen in sub-cl. (v), is not a condition precedent with reference to sub-cl. (iii). This matter has been clarified by the Supreme Court with reference to the provisions of the Act as they stood prior to 1968 amendment [see Broach Distt. Co-operative Cotton Sales Ginning & Pressing Society Ltd. vs . CIT : [1989]177ITR418(SC) ]. In regard to the controversy arising in these cases, the amendment has not made any practical difference. The question is, therefore, covered by the decision of the Supreme Court and cannot be said to arise.', (int) 12 => '<p>6. The Tribunal has not granted deduction to the assessee under s. 43B of the Act in regard to the alleged payments of sales-tax, central sales-tax and entry-tax. The Tribunal only directed the AO to verify whether payment has been made and if satisfied to grant deduction. This part of the decision of the Tribunal cannot be said to have given rise to any question of law. Other questions are incidental to the alleged main questions and do not require independent consideration.', (int) 13 => '<p>7. For the reasons indicated above, we hold that no question of law calling for stating the case and making a reference arises for consideration in these cases. Applications are accordingly dismissed.<p>', (int) 14 => '<p>' ) $paragraphAfter = (int) 1 $cnt = (int) 15 $i = (int) 4include - APP/View/Case/amp.ctp, line 144 View::_evaluate() - CORE/Cake/View/View.php, line 971 View::_render() - CORE/Cake/View/View.php, line 933 View::render() - CORE/Cake/View/View.php, line 473 Controller::render() - CORE/Cake/Controller/Controller.php, line 963 Dispatcher::_invoke() - CORE/Cake/Routing/Dispatcher.php, line 200 Dispatcher::dispatch() - CORE/Cake/Routing/Dispatcher.php, line 167 [main] - APP/webroot/index.php, line 109
(iii) Whether, on the facts and in the circumstances of the case, the Tribunal was justified in deleting interest under s. 217
Notice (8): Undefined variable: query [APP/View/Case/amp.ctp, line 144]Code Contextecho $this->Adsense->display('responsive_rect');}echo html_entity_decode($this->Wand->highlight($content[$i], $query));$viewFile = '/home/legalcrystal/app/View/Case/amp.ctp' $dataForView = array( 'title_for_layout' => 'Commissioner of Income Tax Vs Co Operative Processing and Marketing Society - Citation 510422 - Court Judgment | ', 'desc' => array( 'Judgement' => array( 'id' => '510422', 'acts' => '', 'appealno' => 'MCC No. 563 of 1995 & other connected cases, 27th September, 1995', 'appellant' => 'Commissioner of Income Tax', 'authreffered' => '', 'casename' => 'Commissioner of Income Tax Vs. Co-operative Processing and Marketing Society.', 'casenote' => ' - CONSTITUTION OF INDIA 1055. Article 141; [A.K. Patnaik, C.J., Dipak Misra, Abhay Gohil, S. Samvatsar, & S.K. Gangele, JJ] Dismissal of SLP arising from decision of High Court Whether binding precedent Decision of Division Bench in Rama and Company v. State of Madhya Pradesh, [2007(II) MPJR 229] overruled by Full Bench of same High Court Prior to delivery of decision of Full Bench order passed in Division Bench decision assailed in SLP before Supreme Court Dismissal of SLP by short reasoned order, though declaration of law, but High Court is bound to follow earlier decisions in field regard being had to concept of precedents as per law laid down by Apex Court and Larger bench decision in Jabalpur Bus Operators Association, reported in [2003(1) MPJR 158]. Court clarifies that Dr. Jaidev Siddha v. Jaiprakash Siddha, 2007(2) MPJR (FB) 361; AIR 2007 MP 269 (FB) is not impliedly overruled in view of dismissal of SLP Articles 226 & 227; [A.K. Patnaik, C.J., Dipak Misra, Abhay Gohil, S. Samvatsar, & S.K. Gangele, JJ] Power to issue writ under Article 226 - [per Majority] The High Courts exercise original jurisdiction under Article 226 of the Constitution and supervisory jurisdiction and the power of superintendence under Article 227 of the Constitution. But, an eloquent and fertile one, a writ of certiorari is issued in exercise of original jurisdiction. Whenever word supervisory has been used in the context of Article 226 it is in contrast with the appellate or revisional jurisdiction. When a writ is issued under Article 226 of the Constitution in respect of Courts or tribunals it is done in exercise of original jurisdiction and the parameters are different than Article 227 of the Constitution of India. It is worth noting that the power under Article 227 was there in a different manner under the Government of India Act. Power of superintendence is distinct from the exercise of power of revisional or supervisory jurisdiction which is a facet of the power of superintendence. The confusion occurs when one applies the principle of equivalence or equates the exercise of supervisory power and power of superintendence with original or supervisory jurisdiction. There is an acceptable nuance between the concept of jurisdiction and exercise of power by certain parameters. Both do come within the fundamental concept of judicial review but the jurisdiction exercised is different when under Article 226 a writ is issued it is issued in exercise of original jurisdiction whether against a tribunal or inferior Courts or administrative authorities. The word superintendence has not been used in Article 226 of the Constitution. It is also evident that the term writs is not referred to in Article 227. On a scrutiny of Article 227 it would be crystal clear that power of superintendence conferred on the High Courts is a power that is restricted to the Courts and tribunal in relation to which it exercises jurisdiction. On the contrary the power conferred on the High Court under Article 226 is not constricted and confined to the Courts and tribunals but it extends to any person or authority. Be it noted, Article 226 as has been engrafted in the Constitution covers entirely a new area, a broader one in a larger spectrum. When the Legislature has used the terms in exercise of original jurisdiction and supervisory jurisdiction it has to be understood that they are used in contradistinction in the constitutional context as has been interpreted by the Apex Court. The words of the Section have to be understood to mean exercise of powers under Article 226 of the Constitution of India which is always original. -- M.P. SAMAJ KE KAMJOR VARGON KE KRISHI BHUMI HADAPNE SAMBANDHI KUCHAKRON SE PARITRAN TATHA MUKTI ADHINIYAM [3/1977]. Section 2: Writ appeal Maintainability from order of single Judge-When permissible Held, Maintainability of a writ appeal from an order of the learned single Judge would depend upon many an aspect and cannot be put into a strait jacket formula. It cannot be stated with mathematical exactitude. It would depend upon the pleadings in the writ petition, nature of the order passed by the single Judge, character and the contour of the order, directions issued, nomenclature given and the jurisdictional prospective in the constitutional context are to be perceived. It cannot be said in a hyper-technical manner that an order passed in a writ petition, if there is assail to the order emerging from the inferior tribunal or subordinate Courts has to be treated all the time for all purposes to be under Article 227 of the Constitution of India. It would depend upon the real nature of the order passed by the learned single Judge. The pleadings also assume immense significance. It would not be an over emphasis to state that an order in a writ petition can fit into the subtle contour of Articles 226 and 227 of the Constitution in a composite manner and they can co-inside, co-exist, overlap or imbricate. In this context it is apt to note that there may be cases where the single Judge may feel disposed or inclined to issue a writ to do full and complete justice because it is to be borne in mind that Article 226 of the Constitution is fundamentally a repository and reservoir of justice based on equity and good conscience. It will depend upon factual matrix of each case. Dr. Jaidev Siddha v. Jaiprakash Siddha, 2007(2) MPJR (FB) 361: AIR 2007 MP 269 (FB) is not impliedly overruled in view of dismissal of SLP preferred against order reported in Rama and Company v. State of Madhya Pradesh [2007 (2) MPJR 229 (DB) (MP)]. - The Tribunal only directed the AO to verify whether payment has been made and if satisfied to grant deduction.', 'caseanalysis' => null, 'casesref' => '', 'citingcases' => '', 'counselplain' => '', 'counseldef' => '', 'court' => 'Madhya Pradesh', 'court_type' => 'HC', 'decidedon' => '1995-09-27', 'deposition' => '', 'favorof' => null, 'findings' => null, 'judge' => '', 'judgement' => 'ORDER<p style="text-align: justify;">BY THE COURT :</p><p style="text-align: justify;">These are applications filed by the Revenue under s. 256(2) of the IT Act, 1961, for stating the case and to make reference of the following common questions :</p><p style="text-align: justify;">'(i) Whether, on the facts and in the circumstances of the case, the Tribunal was justified in holding that ginning and pressing charges received from the members is allowable as an exemption though it was with the aid of power ?</p><p style="text-align: justify;">(ii) Whether, on the facts and in the circumstances of the case, the Tribunal was justified in holding that the claim of the assessee though not admissible within the provisions of s. 80P(2)(v) but is admissible under s. 80P(2)(a)(iii) </p><p style="text-align: justify;">(iii) Whether, on the facts and in the circumstances of the case, the Tribunal was justified in deleting interest under s. 217 </p><p style="text-align: justify;">(iv) Whether, on the facts and in the circumstances of the case, the Tribunal was justified in deleting interest under s. 217 </p><p style="text-align: justify;">(v) Whether, on the facts and in the circumstances of the case, Tribunal was justified in directing the Assessing Officer to verify the claim and to allow it the payment of sales-tax, central sales-tax, and entry-tax has been made before filing the returns under s. 139(1) even when the proviso was introduced w.e.f. 1st April, 1988, and not for the earlier years </p><p style="text-align: justify;">(vi) Whether, on the facts and in the circumstances of the case, Tribunal was justified in deleting the penalty amounting to Rs. 1,30,000 on the ground that the foundation of levy of penalty does stand even when the Department has not accepted the same ?'</p><p style="text-align: justify;">2. We have heard learned senior standing counsel for the Revenue. The assessee involved in these case is a co-operative society. The assessment years are during the period 1981 to 1985. Questions 1 and 2 are practically a repetition of the same question. Question No. 4 is a repetition of question No. 3. Therefore, the question No. 4 is deleted. Questions 5 and 6 are renumbered as question Nos. 4 and 5.</p><p style="text-align: justify;">3. The assessee is a co-operative society whose members are cotton growers. The society has been established to help the members in the matter of ginning and pressing cotton and finding market for the processed cotton. The society charges fee for ginning and pressing and also collects a fee for assessing the marketing operations from members. The society contended that it is engaged in marketing of agricultural produce of its members and also processing the agricultural produce of its members and, therefore, it is entitled for deduction of the whole of amount of profit and gains of business attributable to such activities from the assessable income under s. 80P(2) of the Act. The Assessing Officer (AO) negatived this claim on the ground that s. 80P(2)(v) can be invoked only where the processing is done without the aid of power and since processing is done by the assessee with the aid of power, deduction cannot be granted. The appellate authority and the Tribunal took the view that deduction has to be granted under s. 80P(2)(iii) of the Act since the society is engaged in marketing of agricultural produce of its members. It is this decision which has given rise to question Nos. 1 and 2. Question No. 3 is incidental to the answers to question Nos. 1 and 2.</p><p style="text-align: justify;">4. Sec. 43B of the Act states, inter alia, that where sales-tax, central sales-tax and entry-tax is alleged to be paid, deduction is to be given only on actual payment and not on the basis of subsistence of liability. The AO held that payment is not proved and deleted deduction. Tribunal directed him to enquire under the question as to what extent payment has been made and to give deduction to the actual payment made. This decision has led to question No. 4. Question No. 5 is incidental to the answers to other questions.</p><p style="text-align: justify;">5. The order of the Tribunal makes it abundantly clear that deduction is granted in regard to profits from the ginning and pressing operation only because the society is engaged in marketing of agricultural produce of its members. This is under s. 80P(2)(iii) of the Act. The condition that processing shall be done without the aid of the power, seen in sub-cl. (v), is not a condition precedent with reference to sub-cl. (iii). This matter has been clarified by the Supreme Court with reference to the provisions of the Act as they stood prior to 1968 amendment [see Broach Distt. Co-operative Cotton Sales Ginning & Pressing Society Ltd. vs . CIT : [1989]177ITR418(SC) ]. In regard to the controversy arising in these cases, the amendment has not made any practical difference. The question is, therefore, covered by the decision of the Supreme Court and cannot be said to arise.</p><p style="text-align: justify;">6. The Tribunal has not granted deduction to the assessee under s. 43B of the Act in regard to the alleged payments of sales-tax, central sales-tax and entry-tax. The Tribunal only directed the AO to verify whether payment has been made and if satisfied to grant deduction. This part of the decision of the Tribunal cannot be said to have given rise to any question of law. Other questions are incidental to the alleged main questions and do not require independent consideration.</p><p style="text-align: justify;">7. For the reasons indicated above, we hold that no question of law calling for stating the case and making a reference arises for consideration in these cases. Applications are accordingly dismissed.<p style="text-align: justify;"></p><p style="text-align: justify;">', 'observations' => null, 'overruledby' => null, 'prhistory' => '', 'pubs' => '(1996)130CTR(MP)431', 'ratiodecidendi' => '', 'respondent' => 'Co-operative Processing and Marketing Society.', 'sub' => 'Direct Taxation', 'link' => null, 'circuit' => null ) ), 'casename_url' => 'commissioner-income-tax-vs-operative-processing', 'args' => array( (int) 0 => '510422', (int) 1 => 'commissioner-income-tax-vs-operative-processing' ) ) $title_for_layout = 'Commissioner of Income Tax Vs Co Operative Processing and Marketing Society - Citation 510422 - Court Judgment | ' $desc = array( 'Judgement' => array( 'id' => '510422', 'acts' => '', 'appealno' => 'MCC No. 563 of 1995 & other connected cases, 27th September, 1995', 'appellant' => 'Commissioner of Income Tax', 'authreffered' => '', 'casename' => 'Commissioner of Income Tax Vs. Co-operative Processing and Marketing Society.', 'casenote' => ' - CONSTITUTION OF INDIA 1055. Article 141; [A.K. Patnaik, C.J., Dipak Misra, Abhay Gohil, S. Samvatsar, & S.K. Gangele, JJ] Dismissal of SLP arising from decision of High Court Whether binding precedent Decision of Division Bench in Rama and Company v. State of Madhya Pradesh, [2007(II) MPJR 229] overruled by Full Bench of same High Court Prior to delivery of decision of Full Bench order passed in Division Bench decision assailed in SLP before Supreme Court Dismissal of SLP by short reasoned order, though declaration of law, but High Court is bound to follow earlier decisions in field regard being had to concept of precedents as per law laid down by Apex Court and Larger bench decision in Jabalpur Bus Operators Association, reported in [2003(1) MPJR 158]. Court clarifies that Dr. Jaidev Siddha v. Jaiprakash Siddha, 2007(2) MPJR (FB) 361; AIR 2007 MP 269 (FB) is not impliedly overruled in view of dismissal of SLP Articles 226 & 227; [A.K. Patnaik, C.J., Dipak Misra, Abhay Gohil, S. Samvatsar, & S.K. Gangele, JJ] Power to issue writ under Article 226 - [per Majority] The High Courts exercise original jurisdiction under Article 226 of the Constitution and supervisory jurisdiction and the power of superintendence under Article 227 of the Constitution. But, an eloquent and fertile one, a writ of certiorari is issued in exercise of original jurisdiction. Whenever word supervisory has been used in the context of Article 226 it is in contrast with the appellate or revisional jurisdiction. When a writ is issued under Article 226 of the Constitution in respect of Courts or tribunals it is done in exercise of original jurisdiction and the parameters are different than Article 227 of the Constitution of India. It is worth noting that the power under Article 227 was there in a different manner under the Government of India Act. Power of superintendence is distinct from the exercise of power of revisional or supervisory jurisdiction which is a facet of the power of superintendence. The confusion occurs when one applies the principle of equivalence or equates the exercise of supervisory power and power of superintendence with original or supervisory jurisdiction. There is an acceptable nuance between the concept of jurisdiction and exercise of power by certain parameters. Both do come within the fundamental concept of judicial review but the jurisdiction exercised is different when under Article 226 a writ is issued it is issued in exercise of original jurisdiction whether against a tribunal or inferior Courts or administrative authorities. The word superintendence has not been used in Article 226 of the Constitution. It is also evident that the term writs is not referred to in Article 227. On a scrutiny of Article 227 it would be crystal clear that power of superintendence conferred on the High Courts is a power that is restricted to the Courts and tribunal in relation to which it exercises jurisdiction. On the contrary the power conferred on the High Court under Article 226 is not constricted and confined to the Courts and tribunals but it extends to any person or authority. Be it noted, Article 226 as has been engrafted in the Constitution covers entirely a new area, a broader one in a larger spectrum. When the Legislature has used the terms in exercise of original jurisdiction and supervisory jurisdiction it has to be understood that they are used in contradistinction in the constitutional context as has been interpreted by the Apex Court. The words of the Section have to be understood to mean exercise of powers under Article 226 of the Constitution of India which is always original. -- M.P. SAMAJ KE KAMJOR VARGON KE KRISHI BHUMI HADAPNE SAMBANDHI KUCHAKRON SE PARITRAN TATHA MUKTI ADHINIYAM [3/1977]. Section 2: Writ appeal Maintainability from order of single Judge-When permissible Held, Maintainability of a writ appeal from an order of the learned single Judge would depend upon many an aspect and cannot be put into a strait jacket formula. It cannot be stated with mathematical exactitude. It would depend upon the pleadings in the writ petition, nature of the order passed by the single Judge, character and the contour of the order, directions issued, nomenclature given and the jurisdictional prospective in the constitutional context are to be perceived. It cannot be said in a hyper-technical manner that an order passed in a writ petition, if there is assail to the order emerging from the inferior tribunal or subordinate Courts has to be treated all the time for all purposes to be under Article 227 of the Constitution of India. It would depend upon the real nature of the order passed by the learned single Judge. The pleadings also assume immense significance. It would not be an over emphasis to state that an order in a writ petition can fit into the subtle contour of Articles 226 and 227 of the Constitution in a composite manner and they can co-inside, co-exist, overlap or imbricate. In this context it is apt to note that there may be cases where the single Judge may feel disposed or inclined to issue a writ to do full and complete justice because it is to be borne in mind that Article 226 of the Constitution is fundamentally a repository and reservoir of justice based on equity and good conscience. It will depend upon factual matrix of each case. Dr. Jaidev Siddha v. Jaiprakash Siddha, 2007(2) MPJR (FB) 361: AIR 2007 MP 269 (FB) is not impliedly overruled in view of dismissal of SLP preferred against order reported in Rama and Company v. State of Madhya Pradesh [2007 (2) MPJR 229 (DB) (MP)]. - The Tribunal only directed the AO to verify whether payment has been made and if satisfied to grant deduction.', 'caseanalysis' => null, 'casesref' => '', 'citingcases' => '', 'counselplain' => '', 'counseldef' => '', 'court' => 'Madhya Pradesh', 'court_type' => 'HC', 'decidedon' => '1995-09-27', 'deposition' => '', 'favorof' => null, 'findings' => null, 'judge' => '', 'judgement' => 'ORDER<p>BY THE COURT :</p><p>These are applications filed by the Revenue under s. 256(2) of the IT Act, 1961, for stating the case and to make reference of the following common questions :</p><p>'(i) Whether, on the facts and in the circumstances of the case, the Tribunal was justified in holding that ginning and pressing charges received from the members is allowable as an exemption though it was with the aid of power ?</p><p>(ii) Whether, on the facts and in the circumstances of the case, the Tribunal was justified in holding that the claim of the assessee though not admissible within the provisions of s. 80P(2)(v) but is admissible under s. 80P(2)(a)(iii) </p><p>(iii) Whether, on the facts and in the circumstances of the case, the Tribunal was justified in deleting interest under s. 217 </p><p>(iv) Whether, on the facts and in the circumstances of the case, the Tribunal was justified in deleting interest under s. 217 </p><p>(v) Whether, on the facts and in the circumstances of the case, Tribunal was justified in directing the Assessing Officer to verify the claim and to allow it the payment of sales-tax, central sales-tax, and entry-tax has been made before filing the returns under s. 139(1) even when the proviso was introduced w.e.f. 1st April, 1988, and not for the earlier years </p><p>(vi) Whether, on the facts and in the circumstances of the case, Tribunal was justified in deleting the penalty amounting to Rs. 1,30,000 on the ground that the foundation of levy of penalty does stand even when the Department has not accepted the same ?'</p><p>2. We have heard learned senior standing counsel for the Revenue. The assessee involved in these case is a co-operative society. The assessment years are during the period 1981 to 1985. Questions 1 and 2 are practically a repetition of the same question. Question No. 4 is a repetition of question No. 3. Therefore, the question No. 4 is deleted. Questions 5 and 6 are renumbered as question Nos. 4 and 5.</p><p>3. The assessee is a co-operative society whose members are cotton growers. The society has been established to help the members in the matter of ginning and pressing cotton and finding market for the processed cotton. The society charges fee for ginning and pressing and also collects a fee for assessing the marketing operations from members. The society contended that it is engaged in marketing of agricultural produce of its members and also processing the agricultural produce of its members and, therefore, it is entitled for deduction of the whole of amount of profit and gains of business attributable to such activities from the assessable income under s. 80P(2) of the Act. The Assessing Officer (AO) negatived this claim on the ground that s. 80P(2)(v) can be invoked only where the processing is done without the aid of power and since processing is done by the assessee with the aid of power, deduction cannot be granted. The appellate authority and the Tribunal took the view that deduction has to be granted under s. 80P(2)(iii) of the Act since the society is engaged in marketing of agricultural produce of its members. It is this decision which has given rise to question Nos. 1 and 2. Question No. 3 is incidental to the answers to question Nos. 1 and 2.</p><p>4. Sec. 43B of the Act states, inter alia, that where sales-tax, central sales-tax and entry-tax is alleged to be paid, deduction is to be given only on actual payment and not on the basis of subsistence of liability. The AO held that payment is not proved and deleted deduction. Tribunal directed him to enquire under the question as to what extent payment has been made and to give deduction to the actual payment made. This decision has led to question No. 4. Question No. 5 is incidental to the answers to other questions.</p><p>5. The order of the Tribunal makes it abundantly clear that deduction is granted in regard to profits from the ginning and pressing operation only because the society is engaged in marketing of agricultural produce of its members. This is under s. 80P(2)(iii) of the Act. The condition that processing shall be done without the aid of the power, seen in sub-cl. (v), is not a condition precedent with reference to sub-cl. (iii). This matter has been clarified by the Supreme Court with reference to the provisions of the Act as they stood prior to 1968 amendment [see Broach Distt. Co-operative Cotton Sales Ginning & Pressing Society Ltd. vs . CIT : [1989]177ITR418(SC) ]. In regard to the controversy arising in these cases, the amendment has not made any practical difference. The question is, therefore, covered by the decision of the Supreme Court and cannot be said to arise.</p><p>6. The Tribunal has not granted deduction to the assessee under s. 43B of the Act in regard to the alleged payments of sales-tax, central sales-tax and entry-tax. The Tribunal only directed the AO to verify whether payment has been made and if satisfied to grant deduction. This part of the decision of the Tribunal cannot be said to have given rise to any question of law. Other questions are incidental to the alleged main questions and do not require independent consideration.</p><p>7. For the reasons indicated above, we hold that no question of law calling for stating the case and making a reference arises for consideration in these cases. Applications are accordingly dismissed.<p></p><p>', 'observations' => null, 'overruledby' => null, 'prhistory' => '', 'pubs' => '(1996)130CTR(MP)431', 'ratiodecidendi' => '', 'respondent' => 'Co-operative Processing and Marketing Society.', 'sub' => 'Direct Taxation', 'link' => null, 'circuit' => null ) ) $casename_url = 'commissioner-income-tax-vs-operative-processing' $args = array( (int) 0 => '510422', (int) 1 => 'commissioner-income-tax-vs-operative-processing' ) $url = 'https://sooperkanoon.com/case/amp/510422/commissioner-income-tax-vs-operative-processing' $ctype = ' High Court' $content = array( (int) 0 => 'ORDER<p>BY THE COURT :', (int) 1 => '<p>These are applications filed by the Revenue under s. 256(2) of the IT Act, 1961, for stating the case and to make reference of the following common questions :', (int) 2 => '<p>'(i) Whether, on the facts and in the circumstances of the case, the Tribunal was justified in holding that ginning and pressing charges received from the members is allowable as an exemption though it was with the aid of power ?', (int) 3 => '<p>(ii) Whether, on the facts and in the circumstances of the case, the Tribunal was justified in holding that the claim of the assessee though not admissible within the provisions of s. 80P(2)(v) but is admissible under s. 80P(2)(a)(iii) ', (int) 4 => '<p>(iii) Whether, on the facts and in the circumstances of the case, the Tribunal was justified in deleting interest under s. 217 ', (int) 5 => '<p>(iv) Whether, on the facts and in the circumstances of the case, the Tribunal was justified in deleting interest under s. 217 ', (int) 6 => '<p>(v) Whether, on the facts and in the circumstances of the case, Tribunal was justified in directing the Assessing Officer to verify the claim and to allow it the payment of sales-tax, central sales-tax, and entry-tax has been made before filing the returns under s. 139(1) even when the proviso was introduced w.e.f. 1st April, 1988, and not for the earlier years ', (int) 7 => '<p>(vi) Whether, on the facts and in the circumstances of the case, Tribunal was justified in deleting the penalty amounting to Rs. 1,30,000 on the ground that the foundation of levy of penalty does stand even when the Department has not accepted the same ?'', (int) 8 => '<p>2. We have heard learned senior standing counsel for the Revenue. The assessee involved in these case is a co-operative society. The assessment years are during the period 1981 to 1985. Questions 1 and 2 are practically a repetition of the same question. Question No. 4 is a repetition of question No. 3. Therefore, the question No. 4 is deleted. Questions 5 and 6 are renumbered as question Nos. 4 and 5.', (int) 9 => '<p>3. The assessee is a co-operative society whose members are cotton growers. The society has been established to help the members in the matter of ginning and pressing cotton and finding market for the processed cotton. The society charges fee for ginning and pressing and also collects a fee for assessing the marketing operations from members. The society contended that it is engaged in marketing of agricultural produce of its members and also processing the agricultural produce of its members and, therefore, it is entitled for deduction of the whole of amount of profit and gains of business attributable to such activities from the assessable income under s. 80P(2) of the Act. The Assessing Officer (AO) negatived this claim on the ground that s. 80P(2)(v) can be invoked only where the processing is done without the aid of power and since processing is done by the assessee with the aid of power, deduction cannot be granted. The appellate authority and the Tribunal took the view that deduction has to be granted under s. 80P(2)(iii) of the Act since the society is engaged in marketing of agricultural produce of its members. It is this decision which has given rise to question Nos. 1 and 2. Question No. 3 is incidental to the answers to question Nos. 1 and 2.', (int) 10 => '<p>4. Sec. 43B of the Act states, inter alia, that where sales-tax, central sales-tax and entry-tax is alleged to be paid, deduction is to be given only on actual payment and not on the basis of subsistence of liability. The AO held that payment is not proved and deleted deduction. Tribunal directed him to enquire under the question as to what extent payment has been made and to give deduction to the actual payment made. This decision has led to question No. 4. Question No. 5 is incidental to the answers to other questions.', (int) 11 => '<p>5. The order of the Tribunal makes it abundantly clear that deduction is granted in regard to profits from the ginning and pressing operation only because the society is engaged in marketing of agricultural produce of its members. This is under s. 80P(2)(iii) of the Act. The condition that processing shall be done without the aid of the power, seen in sub-cl. (v), is not a condition precedent with reference to sub-cl. (iii). This matter has been clarified by the Supreme Court with reference to the provisions of the Act as they stood prior to 1968 amendment [see Broach Distt. Co-operative Cotton Sales Ginning & Pressing Society Ltd. vs . CIT : [1989]177ITR418(SC) ]. In regard to the controversy arising in these cases, the amendment has not made any practical difference. The question is, therefore, covered by the decision of the Supreme Court and cannot be said to arise.', (int) 12 => '<p>6. The Tribunal has not granted deduction to the assessee under s. 43B of the Act in regard to the alleged payments of sales-tax, central sales-tax and entry-tax. The Tribunal only directed the AO to verify whether payment has been made and if satisfied to grant deduction. This part of the decision of the Tribunal cannot be said to have given rise to any question of law. Other questions are incidental to the alleged main questions and do not require independent consideration.', (int) 13 => '<p>7. For the reasons indicated above, we hold that no question of law calling for stating the case and making a reference arises for consideration in these cases. Applications are accordingly dismissed.<p>', (int) 14 => '<p>' ) $paragraphAfter = (int) 1 $cnt = (int) 15 $i = (int) 5include - APP/View/Case/amp.ctp, line 144 View::_evaluate() - CORE/Cake/View/View.php, line 971 View::_render() - CORE/Cake/View/View.php, line 933 View::render() - CORE/Cake/View/View.php, line 473 Controller::render() - CORE/Cake/Controller/Controller.php, line 963 Dispatcher::_invoke() - CORE/Cake/Routing/Dispatcher.php, line 200 Dispatcher::dispatch() - CORE/Cake/Routing/Dispatcher.php, line 167 [main] - APP/webroot/index.php, line 109
(iv) Whether, on the facts and in the circumstances of the case, the Tribunal was justified in deleting interest under s. 217
Notice (8): Undefined variable: query [APP/View/Case/amp.ctp, line 144]Code Contextecho $this->Adsense->display('responsive_rect');}echo html_entity_decode($this->Wand->highlight($content[$i], $query));$viewFile = '/home/legalcrystal/app/View/Case/amp.ctp' $dataForView = array( 'title_for_layout' => 'Commissioner of Income Tax Vs Co Operative Processing and Marketing Society - Citation 510422 - Court Judgment | ', 'desc' => array( 'Judgement' => array( 'id' => '510422', 'acts' => '', 'appealno' => 'MCC No. 563 of 1995 & other connected cases, 27th September, 1995', 'appellant' => 'Commissioner of Income Tax', 'authreffered' => '', 'casename' => 'Commissioner of Income Tax Vs. Co-operative Processing and Marketing Society.', 'casenote' => ' - CONSTITUTION OF INDIA 1055. Article 141; [A.K. Patnaik, C.J., Dipak Misra, Abhay Gohil, S. Samvatsar, & S.K. Gangele, JJ] Dismissal of SLP arising from decision of High Court Whether binding precedent Decision of Division Bench in Rama and Company v. State of Madhya Pradesh, [2007(II) MPJR 229] overruled by Full Bench of same High Court Prior to delivery of decision of Full Bench order passed in Division Bench decision assailed in SLP before Supreme Court Dismissal of SLP by short reasoned order, though declaration of law, but High Court is bound to follow earlier decisions in field regard being had to concept of precedents as per law laid down by Apex Court and Larger bench decision in Jabalpur Bus Operators Association, reported in [2003(1) MPJR 158]. Court clarifies that Dr. Jaidev Siddha v. Jaiprakash Siddha, 2007(2) MPJR (FB) 361; AIR 2007 MP 269 (FB) is not impliedly overruled in view of dismissal of SLP Articles 226 & 227; [A.K. Patnaik, C.J., Dipak Misra, Abhay Gohil, S. Samvatsar, & S.K. Gangele, JJ] Power to issue writ under Article 226 - [per Majority] The High Courts exercise original jurisdiction under Article 226 of the Constitution and supervisory jurisdiction and the power of superintendence under Article 227 of the Constitution. But, an eloquent and fertile one, a writ of certiorari is issued in exercise of original jurisdiction. Whenever word supervisory has been used in the context of Article 226 it is in contrast with the appellate or revisional jurisdiction. When a writ is issued under Article 226 of the Constitution in respect of Courts or tribunals it is done in exercise of original jurisdiction and the parameters are different than Article 227 of the Constitution of India. It is worth noting that the power under Article 227 was there in a different manner under the Government of India Act. Power of superintendence is distinct from the exercise of power of revisional or supervisory jurisdiction which is a facet of the power of superintendence. The confusion occurs when one applies the principle of equivalence or equates the exercise of supervisory power and power of superintendence with original or supervisory jurisdiction. There is an acceptable nuance between the concept of jurisdiction and exercise of power by certain parameters. Both do come within the fundamental concept of judicial review but the jurisdiction exercised is different when under Article 226 a writ is issued it is issued in exercise of original jurisdiction whether against a tribunal or inferior Courts or administrative authorities. The word superintendence has not been used in Article 226 of the Constitution. It is also evident that the term writs is not referred to in Article 227. On a scrutiny of Article 227 it would be crystal clear that power of superintendence conferred on the High Courts is a power that is restricted to the Courts and tribunal in relation to which it exercises jurisdiction. On the contrary the power conferred on the High Court under Article 226 is not constricted and confined to the Courts and tribunals but it extends to any person or authority. Be it noted, Article 226 as has been engrafted in the Constitution covers entirely a new area, a broader one in a larger spectrum. When the Legislature has used the terms in exercise of original jurisdiction and supervisory jurisdiction it has to be understood that they are used in contradistinction in the constitutional context as has been interpreted by the Apex Court. The words of the Section have to be understood to mean exercise of powers under Article 226 of the Constitution of India which is always original. -- M.P. SAMAJ KE KAMJOR VARGON KE KRISHI BHUMI HADAPNE SAMBANDHI KUCHAKRON SE PARITRAN TATHA MUKTI ADHINIYAM [3/1977]. Section 2: Writ appeal Maintainability from order of single Judge-When permissible Held, Maintainability of a writ appeal from an order of the learned single Judge would depend upon many an aspect and cannot be put into a strait jacket formula. It cannot be stated with mathematical exactitude. It would depend upon the pleadings in the writ petition, nature of the order passed by the single Judge, character and the contour of the order, directions issued, nomenclature given and the jurisdictional prospective in the constitutional context are to be perceived. It cannot be said in a hyper-technical manner that an order passed in a writ petition, if there is assail to the order emerging from the inferior tribunal or subordinate Courts has to be treated all the time for all purposes to be under Article 227 of the Constitution of India. It would depend upon the real nature of the order passed by the learned single Judge. The pleadings also assume immense significance. It would not be an over emphasis to state that an order in a writ petition can fit into the subtle contour of Articles 226 and 227 of the Constitution in a composite manner and they can co-inside, co-exist, overlap or imbricate. In this context it is apt to note that there may be cases where the single Judge may feel disposed or inclined to issue a writ to do full and complete justice because it is to be borne in mind that Article 226 of the Constitution is fundamentally a repository and reservoir of justice based on equity and good conscience. It will depend upon factual matrix of each case. Dr. Jaidev Siddha v. Jaiprakash Siddha, 2007(2) MPJR (FB) 361: AIR 2007 MP 269 (FB) is not impliedly overruled in view of dismissal of SLP preferred against order reported in Rama and Company v. State of Madhya Pradesh [2007 (2) MPJR 229 (DB) (MP)]. - The Tribunal only directed the AO to verify whether payment has been made and if satisfied to grant deduction.', 'caseanalysis' => null, 'casesref' => '', 'citingcases' => '', 'counselplain' => '', 'counseldef' => '', 'court' => 'Madhya Pradesh', 'court_type' => 'HC', 'decidedon' => '1995-09-27', 'deposition' => '', 'favorof' => null, 'findings' => null, 'judge' => '', 'judgement' => 'ORDER<p style="text-align: justify;">BY THE COURT :</p><p style="text-align: justify;">These are applications filed by the Revenue under s. 256(2) of the IT Act, 1961, for stating the case and to make reference of the following common questions :</p><p style="text-align: justify;">'(i) Whether, on the facts and in the circumstances of the case, the Tribunal was justified in holding that ginning and pressing charges received from the members is allowable as an exemption though it was with the aid of power ?</p><p style="text-align: justify;">(ii) Whether, on the facts and in the circumstances of the case, the Tribunal was justified in holding that the claim of the assessee though not admissible within the provisions of s. 80P(2)(v) but is admissible under s. 80P(2)(a)(iii) </p><p style="text-align: justify;">(iii) Whether, on the facts and in the circumstances of the case, the Tribunal was justified in deleting interest under s. 217 </p><p style="text-align: justify;">(iv) Whether, on the facts and in the circumstances of the case, the Tribunal was justified in deleting interest under s. 217 </p><p style="text-align: justify;">(v) Whether, on the facts and in the circumstances of the case, Tribunal was justified in directing the Assessing Officer to verify the claim and to allow it the payment of sales-tax, central sales-tax, and entry-tax has been made before filing the returns under s. 139(1) even when the proviso was introduced w.e.f. 1st April, 1988, and not for the earlier years </p><p style="text-align: justify;">(vi) Whether, on the facts and in the circumstances of the case, Tribunal was justified in deleting the penalty amounting to Rs. 1,30,000 on the ground that the foundation of levy of penalty does stand even when the Department has not accepted the same ?'</p><p style="text-align: justify;">2. We have heard learned senior standing counsel for the Revenue. The assessee involved in these case is a co-operative society. The assessment years are during the period 1981 to 1985. Questions 1 and 2 are practically a repetition of the same question. Question No. 4 is a repetition of question No. 3. Therefore, the question No. 4 is deleted. Questions 5 and 6 are renumbered as question Nos. 4 and 5.</p><p style="text-align: justify;">3. The assessee is a co-operative society whose members are cotton growers. The society has been established to help the members in the matter of ginning and pressing cotton and finding market for the processed cotton. The society charges fee for ginning and pressing and also collects a fee for assessing the marketing operations from members. The society contended that it is engaged in marketing of agricultural produce of its members and also processing the agricultural produce of its members and, therefore, it is entitled for deduction of the whole of amount of profit and gains of business attributable to such activities from the assessable income under s. 80P(2) of the Act. The Assessing Officer (AO) negatived this claim on the ground that s. 80P(2)(v) can be invoked only where the processing is done without the aid of power and since processing is done by the assessee with the aid of power, deduction cannot be granted. The appellate authority and the Tribunal took the view that deduction has to be granted under s. 80P(2)(iii) of the Act since the society is engaged in marketing of agricultural produce of its members. It is this decision which has given rise to question Nos. 1 and 2. Question No. 3 is incidental to the answers to question Nos. 1 and 2.</p><p style="text-align: justify;">4. Sec. 43B of the Act states, inter alia, that where sales-tax, central sales-tax and entry-tax is alleged to be paid, deduction is to be given only on actual payment and not on the basis of subsistence of liability. The AO held that payment is not proved and deleted deduction. Tribunal directed him to enquire under the question as to what extent payment has been made and to give deduction to the actual payment made. This decision has led to question No. 4. Question No. 5 is incidental to the answers to other questions.</p><p style="text-align: justify;">5. The order of the Tribunal makes it abundantly clear that deduction is granted in regard to profits from the ginning and pressing operation only because the society is engaged in marketing of agricultural produce of its members. This is under s. 80P(2)(iii) of the Act. The condition that processing shall be done without the aid of the power, seen in sub-cl. (v), is not a condition precedent with reference to sub-cl. (iii). This matter has been clarified by the Supreme Court with reference to the provisions of the Act as they stood prior to 1968 amendment [see Broach Distt. Co-operative Cotton Sales Ginning & Pressing Society Ltd. vs . CIT : [1989]177ITR418(SC) ]. In regard to the controversy arising in these cases, the amendment has not made any practical difference. The question is, therefore, covered by the decision of the Supreme Court and cannot be said to arise.</p><p style="text-align: justify;">6. The Tribunal has not granted deduction to the assessee under s. 43B of the Act in regard to the alleged payments of sales-tax, central sales-tax and entry-tax. The Tribunal only directed the AO to verify whether payment has been made and if satisfied to grant deduction. This part of the decision of the Tribunal cannot be said to have given rise to any question of law. Other questions are incidental to the alleged main questions and do not require independent consideration.</p><p style="text-align: justify;">7. For the reasons indicated above, we hold that no question of law calling for stating the case and making a reference arises for consideration in these cases. Applications are accordingly dismissed.<p style="text-align: justify;"></p><p style="text-align: justify;">', 'observations' => null, 'overruledby' => null, 'prhistory' => '', 'pubs' => '(1996)130CTR(MP)431', 'ratiodecidendi' => '', 'respondent' => 'Co-operative Processing and Marketing Society.', 'sub' => 'Direct Taxation', 'link' => null, 'circuit' => null ) ), 'casename_url' => 'commissioner-income-tax-vs-operative-processing', 'args' => array( (int) 0 => '510422', (int) 1 => 'commissioner-income-tax-vs-operative-processing' ) ) $title_for_layout = 'Commissioner of Income Tax Vs Co Operative Processing and Marketing Society - Citation 510422 - Court Judgment | ' $desc = array( 'Judgement' => array( 'id' => '510422', 'acts' => '', 'appealno' => 'MCC No. 563 of 1995 & other connected cases, 27th September, 1995', 'appellant' => 'Commissioner of Income Tax', 'authreffered' => '', 'casename' => 'Commissioner of Income Tax Vs. Co-operative Processing and Marketing Society.', 'casenote' => ' - CONSTITUTION OF INDIA 1055. Article 141; [A.K. Patnaik, C.J., Dipak Misra, Abhay Gohil, S. Samvatsar, & S.K. Gangele, JJ] Dismissal of SLP arising from decision of High Court Whether binding precedent Decision of Division Bench in Rama and Company v. State of Madhya Pradesh, [2007(II) MPJR 229] overruled by Full Bench of same High Court Prior to delivery of decision of Full Bench order passed in Division Bench decision assailed in SLP before Supreme Court Dismissal of SLP by short reasoned order, though declaration of law, but High Court is bound to follow earlier decisions in field regard being had to concept of precedents as per law laid down by Apex Court and Larger bench decision in Jabalpur Bus Operators Association, reported in [2003(1) MPJR 158]. Court clarifies that Dr. Jaidev Siddha v. Jaiprakash Siddha, 2007(2) MPJR (FB) 361; AIR 2007 MP 269 (FB) is not impliedly overruled in view of dismissal of SLP Articles 226 & 227; [A.K. Patnaik, C.J., Dipak Misra, Abhay Gohil, S. Samvatsar, & S.K. Gangele, JJ] Power to issue writ under Article 226 - [per Majority] The High Courts exercise original jurisdiction under Article 226 of the Constitution and supervisory jurisdiction and the power of superintendence under Article 227 of the Constitution. But, an eloquent and fertile one, a writ of certiorari is issued in exercise of original jurisdiction. Whenever word supervisory has been used in the context of Article 226 it is in contrast with the appellate or revisional jurisdiction. When a writ is issued under Article 226 of the Constitution in respect of Courts or tribunals it is done in exercise of original jurisdiction and the parameters are different than Article 227 of the Constitution of India. It is worth noting that the power under Article 227 was there in a different manner under the Government of India Act. Power of superintendence is distinct from the exercise of power of revisional or supervisory jurisdiction which is a facet of the power of superintendence. The confusion occurs when one applies the principle of equivalence or equates the exercise of supervisory power and power of superintendence with original or supervisory jurisdiction. There is an acceptable nuance between the concept of jurisdiction and exercise of power by certain parameters. Both do come within the fundamental concept of judicial review but the jurisdiction exercised is different when under Article 226 a writ is issued it is issued in exercise of original jurisdiction whether against a tribunal or inferior Courts or administrative authorities. The word superintendence has not been used in Article 226 of the Constitution. It is also evident that the term writs is not referred to in Article 227. On a scrutiny of Article 227 it would be crystal clear that power of superintendence conferred on the High Courts is a power that is restricted to the Courts and tribunal in relation to which it exercises jurisdiction. On the contrary the power conferred on the High Court under Article 226 is not constricted and confined to the Courts and tribunals but it extends to any person or authority. Be it noted, Article 226 as has been engrafted in the Constitution covers entirely a new area, a broader one in a larger spectrum. When the Legislature has used the terms in exercise of original jurisdiction and supervisory jurisdiction it has to be understood that they are used in contradistinction in the constitutional context as has been interpreted by the Apex Court. The words of the Section have to be understood to mean exercise of powers under Article 226 of the Constitution of India which is always original. -- M.P. SAMAJ KE KAMJOR VARGON KE KRISHI BHUMI HADAPNE SAMBANDHI KUCHAKRON SE PARITRAN TATHA MUKTI ADHINIYAM [3/1977]. Section 2: Writ appeal Maintainability from order of single Judge-When permissible Held, Maintainability of a writ appeal from an order of the learned single Judge would depend upon many an aspect and cannot be put into a strait jacket formula. It cannot be stated with mathematical exactitude. It would depend upon the pleadings in the writ petition, nature of the order passed by the single Judge, character and the contour of the order, directions issued, nomenclature given and the jurisdictional prospective in the constitutional context are to be perceived. It cannot be said in a hyper-technical manner that an order passed in a writ petition, if there is assail to the order emerging from the inferior tribunal or subordinate Courts has to be treated all the time for all purposes to be under Article 227 of the Constitution of India. It would depend upon the real nature of the order passed by the learned single Judge. The pleadings also assume immense significance. It would not be an over emphasis to state that an order in a writ petition can fit into the subtle contour of Articles 226 and 227 of the Constitution in a composite manner and they can co-inside, co-exist, overlap or imbricate. In this context it is apt to note that there may be cases where the single Judge may feel disposed or inclined to issue a writ to do full and complete justice because it is to be borne in mind that Article 226 of the Constitution is fundamentally a repository and reservoir of justice based on equity and good conscience. It will depend upon factual matrix of each case. Dr. Jaidev Siddha v. Jaiprakash Siddha, 2007(2) MPJR (FB) 361: AIR 2007 MP 269 (FB) is not impliedly overruled in view of dismissal of SLP preferred against order reported in Rama and Company v. State of Madhya Pradesh [2007 (2) MPJR 229 (DB) (MP)]. - The Tribunal only directed the AO to verify whether payment has been made and if satisfied to grant deduction.', 'caseanalysis' => null, 'casesref' => '', 'citingcases' => '', 'counselplain' => '', 'counseldef' => '', 'court' => 'Madhya Pradesh', 'court_type' => 'HC', 'decidedon' => '1995-09-27', 'deposition' => '', 'favorof' => null, 'findings' => null, 'judge' => '', 'judgement' => 'ORDER<p>BY THE COURT :</p><p>These are applications filed by the Revenue under s. 256(2) of the IT Act, 1961, for stating the case and to make reference of the following common questions :</p><p>'(i) Whether, on the facts and in the circumstances of the case, the Tribunal was justified in holding that ginning and pressing charges received from the members is allowable as an exemption though it was with the aid of power ?</p><p>(ii) Whether, on the facts and in the circumstances of the case, the Tribunal was justified in holding that the claim of the assessee though not admissible within the provisions of s. 80P(2)(v) but is admissible under s. 80P(2)(a)(iii) </p><p>(iii) Whether, on the facts and in the circumstances of the case, the Tribunal was justified in deleting interest under s. 217 </p><p>(iv) Whether, on the facts and in the circumstances of the case, the Tribunal was justified in deleting interest under s. 217 </p><p>(v) Whether, on the facts and in the circumstances of the case, Tribunal was justified in directing the Assessing Officer to verify the claim and to allow it the payment of sales-tax, central sales-tax, and entry-tax has been made before filing the returns under s. 139(1) even when the proviso was introduced w.e.f. 1st April, 1988, and not for the earlier years </p><p>(vi) Whether, on the facts and in the circumstances of the case, Tribunal was justified in deleting the penalty amounting to Rs. 1,30,000 on the ground that the foundation of levy of penalty does stand even when the Department has not accepted the same ?'</p><p>2. We have heard learned senior standing counsel for the Revenue. The assessee involved in these case is a co-operative society. The assessment years are during the period 1981 to 1985. Questions 1 and 2 are practically a repetition of the same question. Question No. 4 is a repetition of question No. 3. Therefore, the question No. 4 is deleted. Questions 5 and 6 are renumbered as question Nos. 4 and 5.</p><p>3. The assessee is a co-operative society whose members are cotton growers. The society has been established to help the members in the matter of ginning and pressing cotton and finding market for the processed cotton. The society charges fee for ginning and pressing and also collects a fee for assessing the marketing operations from members. The society contended that it is engaged in marketing of agricultural produce of its members and also processing the agricultural produce of its members and, therefore, it is entitled for deduction of the whole of amount of profit and gains of business attributable to such activities from the assessable income under s. 80P(2) of the Act. The Assessing Officer (AO) negatived this claim on the ground that s. 80P(2)(v) can be invoked only where the processing is done without the aid of power and since processing is done by the assessee with the aid of power, deduction cannot be granted. The appellate authority and the Tribunal took the view that deduction has to be granted under s. 80P(2)(iii) of the Act since the society is engaged in marketing of agricultural produce of its members. It is this decision which has given rise to question Nos. 1 and 2. Question No. 3 is incidental to the answers to question Nos. 1 and 2.</p><p>4. Sec. 43B of the Act states, inter alia, that where sales-tax, central sales-tax and entry-tax is alleged to be paid, deduction is to be given only on actual payment and not on the basis of subsistence of liability. The AO held that payment is not proved and deleted deduction. Tribunal directed him to enquire under the question as to what extent payment has been made and to give deduction to the actual payment made. This decision has led to question No. 4. Question No. 5 is incidental to the answers to other questions.</p><p>5. The order of the Tribunal makes it abundantly clear that deduction is granted in regard to profits from the ginning and pressing operation only because the society is engaged in marketing of agricultural produce of its members. This is under s. 80P(2)(iii) of the Act. The condition that processing shall be done without the aid of the power, seen in sub-cl. (v), is not a condition precedent with reference to sub-cl. (iii). This matter has been clarified by the Supreme Court with reference to the provisions of the Act as they stood prior to 1968 amendment [see Broach Distt. Co-operative Cotton Sales Ginning & Pressing Society Ltd. vs . CIT : [1989]177ITR418(SC) ]. In regard to the controversy arising in these cases, the amendment has not made any practical difference. The question is, therefore, covered by the decision of the Supreme Court and cannot be said to arise.</p><p>6. The Tribunal has not granted deduction to the assessee under s. 43B of the Act in regard to the alleged payments of sales-tax, central sales-tax and entry-tax. The Tribunal only directed the AO to verify whether payment has been made and if satisfied to grant deduction. This part of the decision of the Tribunal cannot be said to have given rise to any question of law. Other questions are incidental to the alleged main questions and do not require independent consideration.</p><p>7. For the reasons indicated above, we hold that no question of law calling for stating the case and making a reference arises for consideration in these cases. Applications are accordingly dismissed.<p></p><p>', 'observations' => null, 'overruledby' => null, 'prhistory' => '', 'pubs' => '(1996)130CTR(MP)431', 'ratiodecidendi' => '', 'respondent' => 'Co-operative Processing and Marketing Society.', 'sub' => 'Direct Taxation', 'link' => null, 'circuit' => null ) ) $casename_url = 'commissioner-income-tax-vs-operative-processing' $args = array( (int) 0 => '510422', (int) 1 => 'commissioner-income-tax-vs-operative-processing' ) $url = 'https://sooperkanoon.com/case/amp/510422/commissioner-income-tax-vs-operative-processing' $ctype = ' High Court' $content = array( (int) 0 => 'ORDER<p>BY THE COURT :', (int) 1 => '<p>These are applications filed by the Revenue under s. 256(2) of the IT Act, 1961, for stating the case and to make reference of the following common questions :', (int) 2 => '<p>'(i) Whether, on the facts and in the circumstances of the case, the Tribunal was justified in holding that ginning and pressing charges received from the members is allowable as an exemption though it was with the aid of power ?', (int) 3 => '<p>(ii) Whether, on the facts and in the circumstances of the case, the Tribunal was justified in holding that the claim of the assessee though not admissible within the provisions of s. 80P(2)(v) but is admissible under s. 80P(2)(a)(iii) ', (int) 4 => '<p>(iii) Whether, on the facts and in the circumstances of the case, the Tribunal was justified in deleting interest under s. 217 ', (int) 5 => '<p>(iv) Whether, on the facts and in the circumstances of the case, the Tribunal was justified in deleting interest under s. 217 ', (int) 6 => '<p>(v) Whether, on the facts and in the circumstances of the case, Tribunal was justified in directing the Assessing Officer to verify the claim and to allow it the payment of sales-tax, central sales-tax, and entry-tax has been made before filing the returns under s. 139(1) even when the proviso was introduced w.e.f. 1st April, 1988, and not for the earlier years ', (int) 7 => '<p>(vi) Whether, on the facts and in the circumstances of the case, Tribunal was justified in deleting the penalty amounting to Rs. 1,30,000 on the ground that the foundation of levy of penalty does stand even when the Department has not accepted the same ?'', (int) 8 => '<p>2. We have heard learned senior standing counsel for the Revenue. The assessee involved in these case is a co-operative society. The assessment years are during the period 1981 to 1985. Questions 1 and 2 are practically a repetition of the same question. Question No. 4 is a repetition of question No. 3. Therefore, the question No. 4 is deleted. Questions 5 and 6 are renumbered as question Nos. 4 and 5.', (int) 9 => '<p>3. The assessee is a co-operative society whose members are cotton growers. The society has been established to help the members in the matter of ginning and pressing cotton and finding market for the processed cotton. The society charges fee for ginning and pressing and also collects a fee for assessing the marketing operations from members. The society contended that it is engaged in marketing of agricultural produce of its members and also processing the agricultural produce of its members and, therefore, it is entitled for deduction of the whole of amount of profit and gains of business attributable to such activities from the assessable income under s. 80P(2) of the Act. The Assessing Officer (AO) negatived this claim on the ground that s. 80P(2)(v) can be invoked only where the processing is done without the aid of power and since processing is done by the assessee with the aid of power, deduction cannot be granted. The appellate authority and the Tribunal took the view that deduction has to be granted under s. 80P(2)(iii) of the Act since the society is engaged in marketing of agricultural produce of its members. It is this decision which has given rise to question Nos. 1 and 2. Question No. 3 is incidental to the answers to question Nos. 1 and 2.', (int) 10 => '<p>4. Sec. 43B of the Act states, inter alia, that where sales-tax, central sales-tax and entry-tax is alleged to be paid, deduction is to be given only on actual payment and not on the basis of subsistence of liability. The AO held that payment is not proved and deleted deduction. Tribunal directed him to enquire under the question as to what extent payment has been made and to give deduction to the actual payment made. This decision has led to question No. 4. Question No. 5 is incidental to the answers to other questions.', (int) 11 => '<p>5. The order of the Tribunal makes it abundantly clear that deduction is granted in regard to profits from the ginning and pressing operation only because the society is engaged in marketing of agricultural produce of its members. This is under s. 80P(2)(iii) of the Act. The condition that processing shall be done without the aid of the power, seen in sub-cl. (v), is not a condition precedent with reference to sub-cl. (iii). This matter has been clarified by the Supreme Court with reference to the provisions of the Act as they stood prior to 1968 amendment [see Broach Distt. Co-operative Cotton Sales Ginning & Pressing Society Ltd. vs . CIT : [1989]177ITR418(SC) ]. In regard to the controversy arising in these cases, the amendment has not made any practical difference. The question is, therefore, covered by the decision of the Supreme Court and cannot be said to arise.', (int) 12 => '<p>6. The Tribunal has not granted deduction to the assessee under s. 43B of the Act in regard to the alleged payments of sales-tax, central sales-tax and entry-tax. The Tribunal only directed the AO to verify whether payment has been made and if satisfied to grant deduction. This part of the decision of the Tribunal cannot be said to have given rise to any question of law. Other questions are incidental to the alleged main questions and do not require independent consideration.', (int) 13 => '<p>7. For the reasons indicated above, we hold that no question of law calling for stating the case and making a reference arises for consideration in these cases. Applications are accordingly dismissed.<p>', (int) 14 => '<p>' ) $paragraphAfter = (int) 1 $cnt = (int) 15 $i = (int) 6include - APP/View/Case/amp.ctp, line 144 View::_evaluate() - CORE/Cake/View/View.php, line 971 View::_render() - CORE/Cake/View/View.php, line 933 View::render() - CORE/Cake/View/View.php, line 473 Controller::render() - CORE/Cake/Controller/Controller.php, line 963 Dispatcher::_invoke() - CORE/Cake/Routing/Dispatcher.php, line 200 Dispatcher::dispatch() - CORE/Cake/Routing/Dispatcher.php, line 167 [main] - APP/webroot/index.php, line 109
(v) Whether, on the facts and in the circumstances of the case, Tribunal was justified in directing the Assessing Officer to verify the claim and to allow it the payment of sales-tax, central sales-tax, and entry-tax has been made before filing the returns under s. 139(1) even when the proviso was introduced w.e.f. 1st April, 1988, and not for the earlier years
Notice (8): Undefined variable: query [APP/View/Case/amp.ctp, line 144]Code Contextecho $this->Adsense->display('responsive_rect');}echo html_entity_decode($this->Wand->highlight($content[$i], $query));$viewFile = '/home/legalcrystal/app/View/Case/amp.ctp' $dataForView = array( 'title_for_layout' => 'Commissioner of Income Tax Vs Co Operative Processing and Marketing Society - Citation 510422 - Court Judgment | ', 'desc' => array( 'Judgement' => array( 'id' => '510422', 'acts' => '', 'appealno' => 'MCC No. 563 of 1995 & other connected cases, 27th September, 1995', 'appellant' => 'Commissioner of Income Tax', 'authreffered' => '', 'casename' => 'Commissioner of Income Tax Vs. Co-operative Processing and Marketing Society.', 'casenote' => ' - CONSTITUTION OF INDIA 1055. Article 141; [A.K. Patnaik, C.J., Dipak Misra, Abhay Gohil, S. Samvatsar, & S.K. Gangele, JJ] Dismissal of SLP arising from decision of High Court Whether binding precedent Decision of Division Bench in Rama and Company v. State of Madhya Pradesh, [2007(II) MPJR 229] overruled by Full Bench of same High Court Prior to delivery of decision of Full Bench order passed in Division Bench decision assailed in SLP before Supreme Court Dismissal of SLP by short reasoned order, though declaration of law, but High Court is bound to follow earlier decisions in field regard being had to concept of precedents as per law laid down by Apex Court and Larger bench decision in Jabalpur Bus Operators Association, reported in [2003(1) MPJR 158]. Court clarifies that Dr. Jaidev Siddha v. Jaiprakash Siddha, 2007(2) MPJR (FB) 361; AIR 2007 MP 269 (FB) is not impliedly overruled in view of dismissal of SLP Articles 226 & 227; [A.K. Patnaik, C.J., Dipak Misra, Abhay Gohil, S. Samvatsar, & S.K. Gangele, JJ] Power to issue writ under Article 226 - [per Majority] The High Courts exercise original jurisdiction under Article 226 of the Constitution and supervisory jurisdiction and the power of superintendence under Article 227 of the Constitution. But, an eloquent and fertile one, a writ of certiorari is issued in exercise of original jurisdiction. Whenever word supervisory has been used in the context of Article 226 it is in contrast with the appellate or revisional jurisdiction. When a writ is issued under Article 226 of the Constitution in respect of Courts or tribunals it is done in exercise of original jurisdiction and the parameters are different than Article 227 of the Constitution of India. It is worth noting that the power under Article 227 was there in a different manner under the Government of India Act. Power of superintendence is distinct from the exercise of power of revisional or supervisory jurisdiction which is a facet of the power of superintendence. The confusion occurs when one applies the principle of equivalence or equates the exercise of supervisory power and power of superintendence with original or supervisory jurisdiction. There is an acceptable nuance between the concept of jurisdiction and exercise of power by certain parameters. Both do come within the fundamental concept of judicial review but the jurisdiction exercised is different when under Article 226 a writ is issued it is issued in exercise of original jurisdiction whether against a tribunal or inferior Courts or administrative authorities. The word superintendence has not been used in Article 226 of the Constitution. It is also evident that the term writs is not referred to in Article 227. On a scrutiny of Article 227 it would be crystal clear that power of superintendence conferred on the High Courts is a power that is restricted to the Courts and tribunal in relation to which it exercises jurisdiction. On the contrary the power conferred on the High Court under Article 226 is not constricted and confined to the Courts and tribunals but it extends to any person or authority. Be it noted, Article 226 as has been engrafted in the Constitution covers entirely a new area, a broader one in a larger spectrum. When the Legislature has used the terms in exercise of original jurisdiction and supervisory jurisdiction it has to be understood that they are used in contradistinction in the constitutional context as has been interpreted by the Apex Court. The words of the Section have to be understood to mean exercise of powers under Article 226 of the Constitution of India which is always original. -- M.P. SAMAJ KE KAMJOR VARGON KE KRISHI BHUMI HADAPNE SAMBANDHI KUCHAKRON SE PARITRAN TATHA MUKTI ADHINIYAM [3/1977]. Section 2: Writ appeal Maintainability from order of single Judge-When permissible Held, Maintainability of a writ appeal from an order of the learned single Judge would depend upon many an aspect and cannot be put into a strait jacket formula. It cannot be stated with mathematical exactitude. It would depend upon the pleadings in the writ petition, nature of the order passed by the single Judge, character and the contour of the order, directions issued, nomenclature given and the jurisdictional prospective in the constitutional context are to be perceived. It cannot be said in a hyper-technical manner that an order passed in a writ petition, if there is assail to the order emerging from the inferior tribunal or subordinate Courts has to be treated all the time for all purposes to be under Article 227 of the Constitution of India. It would depend upon the real nature of the order passed by the learned single Judge. The pleadings also assume immense significance. It would not be an over emphasis to state that an order in a writ petition can fit into the subtle contour of Articles 226 and 227 of the Constitution in a composite manner and they can co-inside, co-exist, overlap or imbricate. In this context it is apt to note that there may be cases where the single Judge may feel disposed or inclined to issue a writ to do full and complete justice because it is to be borne in mind that Article 226 of the Constitution is fundamentally a repository and reservoir of justice based on equity and good conscience. It will depend upon factual matrix of each case. Dr. Jaidev Siddha v. Jaiprakash Siddha, 2007(2) MPJR (FB) 361: AIR 2007 MP 269 (FB) is not impliedly overruled in view of dismissal of SLP preferred against order reported in Rama and Company v. State of Madhya Pradesh [2007 (2) MPJR 229 (DB) (MP)]. - The Tribunal only directed the AO to verify whether payment has been made and if satisfied to grant deduction.', 'caseanalysis' => null, 'casesref' => '', 'citingcases' => '', 'counselplain' => '', 'counseldef' => '', 'court' => 'Madhya Pradesh', 'court_type' => 'HC', 'decidedon' => '1995-09-27', 'deposition' => '', 'favorof' => null, 'findings' => null, 'judge' => '', 'judgement' => 'ORDER<p style="text-align: justify;">BY THE COURT :</p><p style="text-align: justify;">These are applications filed by the Revenue under s. 256(2) of the IT Act, 1961, for stating the case and to make reference of the following common questions :</p><p style="text-align: justify;">'(i) Whether, on the facts and in the circumstances of the case, the Tribunal was justified in holding that ginning and pressing charges received from the members is allowable as an exemption though it was with the aid of power ?</p><p style="text-align: justify;">(ii) Whether, on the facts and in the circumstances of the case, the Tribunal was justified in holding that the claim of the assessee though not admissible within the provisions of s. 80P(2)(v) but is admissible under s. 80P(2)(a)(iii) </p><p style="text-align: justify;">(iii) Whether, on the facts and in the circumstances of the case, the Tribunal was justified in deleting interest under s. 217 </p><p style="text-align: justify;">(iv) Whether, on the facts and in the circumstances of the case, the Tribunal was justified in deleting interest under s. 217 </p><p style="text-align: justify;">(v) Whether, on the facts and in the circumstances of the case, Tribunal was justified in directing the Assessing Officer to verify the claim and to allow it the payment of sales-tax, central sales-tax, and entry-tax has been made before filing the returns under s. 139(1) even when the proviso was introduced w.e.f. 1st April, 1988, and not for the earlier years </p><p style="text-align: justify;">(vi) Whether, on the facts and in the circumstances of the case, Tribunal was justified in deleting the penalty amounting to Rs. 1,30,000 on the ground that the foundation of levy of penalty does stand even when the Department has not accepted the same ?'</p><p style="text-align: justify;">2. We have heard learned senior standing counsel for the Revenue. The assessee involved in these case is a co-operative society. The assessment years are during the period 1981 to 1985. Questions 1 and 2 are practically a repetition of the same question. Question No. 4 is a repetition of question No. 3. Therefore, the question No. 4 is deleted. Questions 5 and 6 are renumbered as question Nos. 4 and 5.</p><p style="text-align: justify;">3. The assessee is a co-operative society whose members are cotton growers. The society has been established to help the members in the matter of ginning and pressing cotton and finding market for the processed cotton. The society charges fee for ginning and pressing and also collects a fee for assessing the marketing operations from members. The society contended that it is engaged in marketing of agricultural produce of its members and also processing the agricultural produce of its members and, therefore, it is entitled for deduction of the whole of amount of profit and gains of business attributable to such activities from the assessable income under s. 80P(2) of the Act. The Assessing Officer (AO) negatived this claim on the ground that s. 80P(2)(v) can be invoked only where the processing is done without the aid of power and since processing is done by the assessee with the aid of power, deduction cannot be granted. The appellate authority and the Tribunal took the view that deduction has to be granted under s. 80P(2)(iii) of the Act since the society is engaged in marketing of agricultural produce of its members. It is this decision which has given rise to question Nos. 1 and 2. Question No. 3 is incidental to the answers to question Nos. 1 and 2.</p><p style="text-align: justify;">4. Sec. 43B of the Act states, inter alia, that where sales-tax, central sales-tax and entry-tax is alleged to be paid, deduction is to be given only on actual payment and not on the basis of subsistence of liability. The AO held that payment is not proved and deleted deduction. Tribunal directed him to enquire under the question as to what extent payment has been made and to give deduction to the actual payment made. This decision has led to question No. 4. Question No. 5 is incidental to the answers to other questions.</p><p style="text-align: justify;">5. The order of the Tribunal makes it abundantly clear that deduction is granted in regard to profits from the ginning and pressing operation only because the society is engaged in marketing of agricultural produce of its members. This is under s. 80P(2)(iii) of the Act. The condition that processing shall be done without the aid of the power, seen in sub-cl. (v), is not a condition precedent with reference to sub-cl. (iii). This matter has been clarified by the Supreme Court with reference to the provisions of the Act as they stood prior to 1968 amendment [see Broach Distt. Co-operative Cotton Sales Ginning & Pressing Society Ltd. vs . CIT : [1989]177ITR418(SC) ]. In regard to the controversy arising in these cases, the amendment has not made any practical difference. The question is, therefore, covered by the decision of the Supreme Court and cannot be said to arise.</p><p style="text-align: justify;">6. The Tribunal has not granted deduction to the assessee under s. 43B of the Act in regard to the alleged payments of sales-tax, central sales-tax and entry-tax. The Tribunal only directed the AO to verify whether payment has been made and if satisfied to grant deduction. This part of the decision of the Tribunal cannot be said to have given rise to any question of law. Other questions are incidental to the alleged main questions and do not require independent consideration.</p><p style="text-align: justify;">7. For the reasons indicated above, we hold that no question of law calling for stating the case and making a reference arises for consideration in these cases. Applications are accordingly dismissed.<p style="text-align: justify;"></p><p style="text-align: justify;">', 'observations' => null, 'overruledby' => null, 'prhistory' => '', 'pubs' => '(1996)130CTR(MP)431', 'ratiodecidendi' => '', 'respondent' => 'Co-operative Processing and Marketing Society.', 'sub' => 'Direct Taxation', 'link' => null, 'circuit' => null ) ), 'casename_url' => 'commissioner-income-tax-vs-operative-processing', 'args' => array( (int) 0 => '510422', (int) 1 => 'commissioner-income-tax-vs-operative-processing' ) ) $title_for_layout = 'Commissioner of Income Tax Vs Co Operative Processing and Marketing Society - Citation 510422 - Court Judgment | ' $desc = array( 'Judgement' => array( 'id' => '510422', 'acts' => '', 'appealno' => 'MCC No. 563 of 1995 & other connected cases, 27th September, 1995', 'appellant' => 'Commissioner of Income Tax', 'authreffered' => '', 'casename' => 'Commissioner of Income Tax Vs. Co-operative Processing and Marketing Society.', 'casenote' => ' - CONSTITUTION OF INDIA 1055. Article 141; [A.K. Patnaik, C.J., Dipak Misra, Abhay Gohil, S. Samvatsar, & S.K. Gangele, JJ] Dismissal of SLP arising from decision of High Court Whether binding precedent Decision of Division Bench in Rama and Company v. State of Madhya Pradesh, [2007(II) MPJR 229] overruled by Full Bench of same High Court Prior to delivery of decision of Full Bench order passed in Division Bench decision assailed in SLP before Supreme Court Dismissal of SLP by short reasoned order, though declaration of law, but High Court is bound to follow earlier decisions in field regard being had to concept of precedents as per law laid down by Apex Court and Larger bench decision in Jabalpur Bus Operators Association, reported in [2003(1) MPJR 158]. Court clarifies that Dr. Jaidev Siddha v. Jaiprakash Siddha, 2007(2) MPJR (FB) 361; AIR 2007 MP 269 (FB) is not impliedly overruled in view of dismissal of SLP Articles 226 & 227; [A.K. Patnaik, C.J., Dipak Misra, Abhay Gohil, S. Samvatsar, & S.K. Gangele, JJ] Power to issue writ under Article 226 - [per Majority] The High Courts exercise original jurisdiction under Article 226 of the Constitution and supervisory jurisdiction and the power of superintendence under Article 227 of the Constitution. But, an eloquent and fertile one, a writ of certiorari is issued in exercise of original jurisdiction. Whenever word supervisory has been used in the context of Article 226 it is in contrast with the appellate or revisional jurisdiction. When a writ is issued under Article 226 of the Constitution in respect of Courts or tribunals it is done in exercise of original jurisdiction and the parameters are different than Article 227 of the Constitution of India. It is worth noting that the power under Article 227 was there in a different manner under the Government of India Act. Power of superintendence is distinct from the exercise of power of revisional or supervisory jurisdiction which is a facet of the power of superintendence. The confusion occurs when one applies the principle of equivalence or equates the exercise of supervisory power and power of superintendence with original or supervisory jurisdiction. There is an acceptable nuance between the concept of jurisdiction and exercise of power by certain parameters. Both do come within the fundamental concept of judicial review but the jurisdiction exercised is different when under Article 226 a writ is issued it is issued in exercise of original jurisdiction whether against a tribunal or inferior Courts or administrative authorities. The word superintendence has not been used in Article 226 of the Constitution. It is also evident that the term writs is not referred to in Article 227. On a scrutiny of Article 227 it would be crystal clear that power of superintendence conferred on the High Courts is a power that is restricted to the Courts and tribunal in relation to which it exercises jurisdiction. On the contrary the power conferred on the High Court under Article 226 is not constricted and confined to the Courts and tribunals but it extends to any person or authority. Be it noted, Article 226 as has been engrafted in the Constitution covers entirely a new area, a broader one in a larger spectrum. When the Legislature has used the terms in exercise of original jurisdiction and supervisory jurisdiction it has to be understood that they are used in contradistinction in the constitutional context as has been interpreted by the Apex Court. The words of the Section have to be understood to mean exercise of powers under Article 226 of the Constitution of India which is always original. -- M.P. SAMAJ KE KAMJOR VARGON KE KRISHI BHUMI HADAPNE SAMBANDHI KUCHAKRON SE PARITRAN TATHA MUKTI ADHINIYAM [3/1977]. Section 2: Writ appeal Maintainability from order of single Judge-When permissible Held, Maintainability of a writ appeal from an order of the learned single Judge would depend upon many an aspect and cannot be put into a strait jacket formula. It cannot be stated with mathematical exactitude. It would depend upon the pleadings in the writ petition, nature of the order passed by the single Judge, character and the contour of the order, directions issued, nomenclature given and the jurisdictional prospective in the constitutional context are to be perceived. It cannot be said in a hyper-technical manner that an order passed in a writ petition, if there is assail to the order emerging from the inferior tribunal or subordinate Courts has to be treated all the time for all purposes to be under Article 227 of the Constitution of India. It would depend upon the real nature of the order passed by the learned single Judge. The pleadings also assume immense significance. It would not be an over emphasis to state that an order in a writ petition can fit into the subtle contour of Articles 226 and 227 of the Constitution in a composite manner and they can co-inside, co-exist, overlap or imbricate. In this context it is apt to note that there may be cases where the single Judge may feel disposed or inclined to issue a writ to do full and complete justice because it is to be borne in mind that Article 226 of the Constitution is fundamentally a repository and reservoir of justice based on equity and good conscience. It will depend upon factual matrix of each case. Dr. Jaidev Siddha v. Jaiprakash Siddha, 2007(2) MPJR (FB) 361: AIR 2007 MP 269 (FB) is not impliedly overruled in view of dismissal of SLP preferred against order reported in Rama and Company v. State of Madhya Pradesh [2007 (2) MPJR 229 (DB) (MP)]. - The Tribunal only directed the AO to verify whether payment has been made and if satisfied to grant deduction.', 'caseanalysis' => null, 'casesref' => '', 'citingcases' => '', 'counselplain' => '', 'counseldef' => '', 'court' => 'Madhya Pradesh', 'court_type' => 'HC', 'decidedon' => '1995-09-27', 'deposition' => '', 'favorof' => null, 'findings' => null, 'judge' => '', 'judgement' => 'ORDER<p>BY THE COURT :</p><p>These are applications filed by the Revenue under s. 256(2) of the IT Act, 1961, for stating the case and to make reference of the following common questions :</p><p>'(i) Whether, on the facts and in the circumstances of the case, the Tribunal was justified in holding that ginning and pressing charges received from the members is allowable as an exemption though it was with the aid of power ?</p><p>(ii) Whether, on the facts and in the circumstances of the case, the Tribunal was justified in holding that the claim of the assessee though not admissible within the provisions of s. 80P(2)(v) but is admissible under s. 80P(2)(a)(iii) </p><p>(iii) Whether, on the facts and in the circumstances of the case, the Tribunal was justified in deleting interest under s. 217 </p><p>(iv) Whether, on the facts and in the circumstances of the case, the Tribunal was justified in deleting interest under s. 217 </p><p>(v) Whether, on the facts and in the circumstances of the case, Tribunal was justified in directing the Assessing Officer to verify the claim and to allow it the payment of sales-tax, central sales-tax, and entry-tax has been made before filing the returns under s. 139(1) even when the proviso was introduced w.e.f. 1st April, 1988, and not for the earlier years </p><p>(vi) Whether, on the facts and in the circumstances of the case, Tribunal was justified in deleting the penalty amounting to Rs. 1,30,000 on the ground that the foundation of levy of penalty does stand even when the Department has not accepted the same ?'</p><p>2. We have heard learned senior standing counsel for the Revenue. The assessee involved in these case is a co-operative society. The assessment years are during the period 1981 to 1985. Questions 1 and 2 are practically a repetition of the same question. Question No. 4 is a repetition of question No. 3. Therefore, the question No. 4 is deleted. Questions 5 and 6 are renumbered as question Nos. 4 and 5.</p><p>3. The assessee is a co-operative society whose members are cotton growers. The society has been established to help the members in the matter of ginning and pressing cotton and finding market for the processed cotton. The society charges fee for ginning and pressing and also collects a fee for assessing the marketing operations from members. The society contended that it is engaged in marketing of agricultural produce of its members and also processing the agricultural produce of its members and, therefore, it is entitled for deduction of the whole of amount of profit and gains of business attributable to such activities from the assessable income under s. 80P(2) of the Act. The Assessing Officer (AO) negatived this claim on the ground that s. 80P(2)(v) can be invoked only where the processing is done without the aid of power and since processing is done by the assessee with the aid of power, deduction cannot be granted. The appellate authority and the Tribunal took the view that deduction has to be granted under s. 80P(2)(iii) of the Act since the society is engaged in marketing of agricultural produce of its members. It is this decision which has given rise to question Nos. 1 and 2. Question No. 3 is incidental to the answers to question Nos. 1 and 2.</p><p>4. Sec. 43B of the Act states, inter alia, that where sales-tax, central sales-tax and entry-tax is alleged to be paid, deduction is to be given only on actual payment and not on the basis of subsistence of liability. The AO held that payment is not proved and deleted deduction. Tribunal directed him to enquire under the question as to what extent payment has been made and to give deduction to the actual payment made. This decision has led to question No. 4. Question No. 5 is incidental to the answers to other questions.</p><p>5. The order of the Tribunal makes it abundantly clear that deduction is granted in regard to profits from the ginning and pressing operation only because the society is engaged in marketing of agricultural produce of its members. This is under s. 80P(2)(iii) of the Act. The condition that processing shall be done without the aid of the power, seen in sub-cl. (v), is not a condition precedent with reference to sub-cl. (iii). This matter has been clarified by the Supreme Court with reference to the provisions of the Act as they stood prior to 1968 amendment [see Broach Distt. Co-operative Cotton Sales Ginning & Pressing Society Ltd. vs . CIT : [1989]177ITR418(SC) ]. In regard to the controversy arising in these cases, the amendment has not made any practical difference. The question is, therefore, covered by the decision of the Supreme Court and cannot be said to arise.</p><p>6. The Tribunal has not granted deduction to the assessee under s. 43B of the Act in regard to the alleged payments of sales-tax, central sales-tax and entry-tax. The Tribunal only directed the AO to verify whether payment has been made and if satisfied to grant deduction. This part of the decision of the Tribunal cannot be said to have given rise to any question of law. Other questions are incidental to the alleged main questions and do not require independent consideration.</p><p>7. For the reasons indicated above, we hold that no question of law calling for stating the case and making a reference arises for consideration in these cases. Applications are accordingly dismissed.<p></p><p>', 'observations' => null, 'overruledby' => null, 'prhistory' => '', 'pubs' => '(1996)130CTR(MP)431', 'ratiodecidendi' => '', 'respondent' => 'Co-operative Processing and Marketing Society.', 'sub' => 'Direct Taxation', 'link' => null, 'circuit' => null ) ) $casename_url = 'commissioner-income-tax-vs-operative-processing' $args = array( (int) 0 => '510422', (int) 1 => 'commissioner-income-tax-vs-operative-processing' ) $url = 'https://sooperkanoon.com/case/amp/510422/commissioner-income-tax-vs-operative-processing' $ctype = ' High Court' $content = array( (int) 0 => 'ORDER<p>BY THE COURT :', (int) 1 => '<p>These are applications filed by the Revenue under s. 256(2) of the IT Act, 1961, for stating the case and to make reference of the following common questions :', (int) 2 => '<p>'(i) Whether, on the facts and in the circumstances of the case, the Tribunal was justified in holding that ginning and pressing charges received from the members is allowable as an exemption though it was with the aid of power ?', (int) 3 => '<p>(ii) Whether, on the facts and in the circumstances of the case, the Tribunal was justified in holding that the claim of the assessee though not admissible within the provisions of s. 80P(2)(v) but is admissible under s. 80P(2)(a)(iii) ', (int) 4 => '<p>(iii) Whether, on the facts and in the circumstances of the case, the Tribunal was justified in deleting interest under s. 217 ', (int) 5 => '<p>(iv) Whether, on the facts and in the circumstances of the case, the Tribunal was justified in deleting interest under s. 217 ', (int) 6 => '<p>(v) Whether, on the facts and in the circumstances of the case, Tribunal was justified in directing the Assessing Officer to verify the claim and to allow it the payment of sales-tax, central sales-tax, and entry-tax has been made before filing the returns under s. 139(1) even when the proviso was introduced w.e.f. 1st April, 1988, and not for the earlier years ', (int) 7 => '<p>(vi) Whether, on the facts and in the circumstances of the case, Tribunal was justified in deleting the penalty amounting to Rs. 1,30,000 on the ground that the foundation of levy of penalty does stand even when the Department has not accepted the same ?'', (int) 8 => '<p>2. We have heard learned senior standing counsel for the Revenue. The assessee involved in these case is a co-operative society. The assessment years are during the period 1981 to 1985. Questions 1 and 2 are practically a repetition of the same question. Question No. 4 is a repetition of question No. 3. Therefore, the question No. 4 is deleted. Questions 5 and 6 are renumbered as question Nos. 4 and 5.', (int) 9 => '<p>3. The assessee is a co-operative society whose members are cotton growers. The society has been established to help the members in the matter of ginning and pressing cotton and finding market for the processed cotton. The society charges fee for ginning and pressing and also collects a fee for assessing the marketing operations from members. The society contended that it is engaged in marketing of agricultural produce of its members and also processing the agricultural produce of its members and, therefore, it is entitled for deduction of the whole of amount of profit and gains of business attributable to such activities from the assessable income under s. 80P(2) of the Act. The Assessing Officer (AO) negatived this claim on the ground that s. 80P(2)(v) can be invoked only where the processing is done without the aid of power and since processing is done by the assessee with the aid of power, deduction cannot be granted. The appellate authority and the Tribunal took the view that deduction has to be granted under s. 80P(2)(iii) of the Act since the society is engaged in marketing of agricultural produce of its members. It is this decision which has given rise to question Nos. 1 and 2. Question No. 3 is incidental to the answers to question Nos. 1 and 2.', (int) 10 => '<p>4. Sec. 43B of the Act states, inter alia, that where sales-tax, central sales-tax and entry-tax is alleged to be paid, deduction is to be given only on actual payment and not on the basis of subsistence of liability. The AO held that payment is not proved and deleted deduction. Tribunal directed him to enquire under the question as to what extent payment has been made and to give deduction to the actual payment made. This decision has led to question No. 4. Question No. 5 is incidental to the answers to other questions.', (int) 11 => '<p>5. The order of the Tribunal makes it abundantly clear that deduction is granted in regard to profits from the ginning and pressing operation only because the society is engaged in marketing of agricultural produce of its members. This is under s. 80P(2)(iii) of the Act. The condition that processing shall be done without the aid of the power, seen in sub-cl. (v), is not a condition precedent with reference to sub-cl. (iii). This matter has been clarified by the Supreme Court with reference to the provisions of the Act as they stood prior to 1968 amendment [see Broach Distt. Co-operative Cotton Sales Ginning & Pressing Society Ltd. vs . CIT : [1989]177ITR418(SC) ]. In regard to the controversy arising in these cases, the amendment has not made any practical difference. The question is, therefore, covered by the decision of the Supreme Court and cannot be said to arise.', (int) 12 => '<p>6. The Tribunal has not granted deduction to the assessee under s. 43B of the Act in regard to the alleged payments of sales-tax, central sales-tax and entry-tax. The Tribunal only directed the AO to verify whether payment has been made and if satisfied to grant deduction. This part of the decision of the Tribunal cannot be said to have given rise to any question of law. Other questions are incidental to the alleged main questions and do not require independent consideration.', (int) 13 => '<p>7. For the reasons indicated above, we hold that no question of law calling for stating the case and making a reference arises for consideration in these cases. Applications are accordingly dismissed.<p>', (int) 14 => '<p>' ) $paragraphAfter = (int) 1 $cnt = (int) 15 $i = (int) 7include - APP/View/Case/amp.ctp, line 144 View::_evaluate() - CORE/Cake/View/View.php, line 971 View::_render() - CORE/Cake/View/View.php, line 933 View::render() - CORE/Cake/View/View.php, line 473 Controller::render() - CORE/Cake/Controller/Controller.php, line 963 Dispatcher::_invoke() - CORE/Cake/Routing/Dispatcher.php, line 200 Dispatcher::dispatch() - CORE/Cake/Routing/Dispatcher.php, line 167 [main] - APP/webroot/index.php, line 109
(vi) Whether, on the facts and in the circumstances of the case, Tribunal was justified in deleting the penalty amounting to Rs. 1,30,000 on the ground that the foundation of levy of penalty does stand even when the Department has not accepted the same ?'
Notice (8): Undefined variable: query [APP/View/Case/amp.ctp, line 144]Code Contextecho $this->Adsense->display('responsive_rect');}echo html_entity_decode($this->Wand->highlight($content[$i], $query));$viewFile = '/home/legalcrystal/app/View/Case/amp.ctp' $dataForView = array( 'title_for_layout' => 'Commissioner of Income Tax Vs Co Operative Processing and Marketing Society - Citation 510422 - Court Judgment | ', 'desc' => array( 'Judgement' => array( 'id' => '510422', 'acts' => '', 'appealno' => 'MCC No. 563 of 1995 & other connected cases, 27th September, 1995', 'appellant' => 'Commissioner of Income Tax', 'authreffered' => '', 'casename' => 'Commissioner of Income Tax Vs. Co-operative Processing and Marketing Society.', 'casenote' => ' - CONSTITUTION OF INDIA 1055. Article 141; [A.K. Patnaik, C.J., Dipak Misra, Abhay Gohil, S. Samvatsar, & S.K. Gangele, JJ] Dismissal of SLP arising from decision of High Court Whether binding precedent Decision of Division Bench in Rama and Company v. State of Madhya Pradesh, [2007(II) MPJR 229] overruled by Full Bench of same High Court Prior to delivery of decision of Full Bench order passed in Division Bench decision assailed in SLP before Supreme Court Dismissal of SLP by short reasoned order, though declaration of law, but High Court is bound to follow earlier decisions in field regard being had to concept of precedents as per law laid down by Apex Court and Larger bench decision in Jabalpur Bus Operators Association, reported in [2003(1) MPJR 158]. Court clarifies that Dr. Jaidev Siddha v. Jaiprakash Siddha, 2007(2) MPJR (FB) 361; AIR 2007 MP 269 (FB) is not impliedly overruled in view of dismissal of SLP Articles 226 & 227; [A.K. Patnaik, C.J., Dipak Misra, Abhay Gohil, S. Samvatsar, & S.K. Gangele, JJ] Power to issue writ under Article 226 - [per Majority] The High Courts exercise original jurisdiction under Article 226 of the Constitution and supervisory jurisdiction and the power of superintendence under Article 227 of the Constitution. But, an eloquent and fertile one, a writ of certiorari is issued in exercise of original jurisdiction. Whenever word supervisory has been used in the context of Article 226 it is in contrast with the appellate or revisional jurisdiction. When a writ is issued under Article 226 of the Constitution in respect of Courts or tribunals it is done in exercise of original jurisdiction and the parameters are different than Article 227 of the Constitution of India. It is worth noting that the power under Article 227 was there in a different manner under the Government of India Act. Power of superintendence is distinct from the exercise of power of revisional or supervisory jurisdiction which is a facet of the power of superintendence. The confusion occurs when one applies the principle of equivalence or equates the exercise of supervisory power and power of superintendence with original or supervisory jurisdiction. There is an acceptable nuance between the concept of jurisdiction and exercise of power by certain parameters. Both do come within the fundamental concept of judicial review but the jurisdiction exercised is different when under Article 226 a writ is issued it is issued in exercise of original jurisdiction whether against a tribunal or inferior Courts or administrative authorities. The word superintendence has not been used in Article 226 of the Constitution. It is also evident that the term writs is not referred to in Article 227. On a scrutiny of Article 227 it would be crystal clear that power of superintendence conferred on the High Courts is a power that is restricted to the Courts and tribunal in relation to which it exercises jurisdiction. On the contrary the power conferred on the High Court under Article 226 is not constricted and confined to the Courts and tribunals but it extends to any person or authority. Be it noted, Article 226 as has been engrafted in the Constitution covers entirely a new area, a broader one in a larger spectrum. When the Legislature has used the terms in exercise of original jurisdiction and supervisory jurisdiction it has to be understood that they are used in contradistinction in the constitutional context as has been interpreted by the Apex Court. The words of the Section have to be understood to mean exercise of powers under Article 226 of the Constitution of India which is always original. -- M.P. SAMAJ KE KAMJOR VARGON KE KRISHI BHUMI HADAPNE SAMBANDHI KUCHAKRON SE PARITRAN TATHA MUKTI ADHINIYAM [3/1977]. Section 2: Writ appeal Maintainability from order of single Judge-When permissible Held, Maintainability of a writ appeal from an order of the learned single Judge would depend upon many an aspect and cannot be put into a strait jacket formula. It cannot be stated with mathematical exactitude. It would depend upon the pleadings in the writ petition, nature of the order passed by the single Judge, character and the contour of the order, directions issued, nomenclature given and the jurisdictional prospective in the constitutional context are to be perceived. It cannot be said in a hyper-technical manner that an order passed in a writ petition, if there is assail to the order emerging from the inferior tribunal or subordinate Courts has to be treated all the time for all purposes to be under Article 227 of the Constitution of India. It would depend upon the real nature of the order passed by the learned single Judge. The pleadings also assume immense significance. It would not be an over emphasis to state that an order in a writ petition can fit into the subtle contour of Articles 226 and 227 of the Constitution in a composite manner and they can co-inside, co-exist, overlap or imbricate. In this context it is apt to note that there may be cases where the single Judge may feel disposed or inclined to issue a writ to do full and complete justice because it is to be borne in mind that Article 226 of the Constitution is fundamentally a repository and reservoir of justice based on equity and good conscience. It will depend upon factual matrix of each case. Dr. Jaidev Siddha v. Jaiprakash Siddha, 2007(2) MPJR (FB) 361: AIR 2007 MP 269 (FB) is not impliedly overruled in view of dismissal of SLP preferred against order reported in Rama and Company v. State of Madhya Pradesh [2007 (2) MPJR 229 (DB) (MP)]. - The Tribunal only directed the AO to verify whether payment has been made and if satisfied to grant deduction.', 'caseanalysis' => null, 'casesref' => '', 'citingcases' => '', 'counselplain' => '', 'counseldef' => '', 'court' => 'Madhya Pradesh', 'court_type' => 'HC', 'decidedon' => '1995-09-27', 'deposition' => '', 'favorof' => null, 'findings' => null, 'judge' => '', 'judgement' => 'ORDER<p style="text-align: justify;">BY THE COURT :</p><p style="text-align: justify;">These are applications filed by the Revenue under s. 256(2) of the IT Act, 1961, for stating the case and to make reference of the following common questions :</p><p style="text-align: justify;">'(i) Whether, on the facts and in the circumstances of the case, the Tribunal was justified in holding that ginning and pressing charges received from the members is allowable as an exemption though it was with the aid of power ?</p><p style="text-align: justify;">(ii) Whether, on the facts and in the circumstances of the case, the Tribunal was justified in holding that the claim of the assessee though not admissible within the provisions of s. 80P(2)(v) but is admissible under s. 80P(2)(a)(iii) </p><p style="text-align: justify;">(iii) Whether, on the facts and in the circumstances of the case, the Tribunal was justified in deleting interest under s. 217 </p><p style="text-align: justify;">(iv) Whether, on the facts and in the circumstances of the case, the Tribunal was justified in deleting interest under s. 217 </p><p style="text-align: justify;">(v) Whether, on the facts and in the circumstances of the case, Tribunal was justified in directing the Assessing Officer to verify the claim and to allow it the payment of sales-tax, central sales-tax, and entry-tax has been made before filing the returns under s. 139(1) even when the proviso was introduced w.e.f. 1st April, 1988, and not for the earlier years </p><p style="text-align: justify;">(vi) Whether, on the facts and in the circumstances of the case, Tribunal was justified in deleting the penalty amounting to Rs. 1,30,000 on the ground that the foundation of levy of penalty does stand even when the Department has not accepted the same ?'</p><p style="text-align: justify;">2. We have heard learned senior standing counsel for the Revenue. The assessee involved in these case is a co-operative society. The assessment years are during the period 1981 to 1985. Questions 1 and 2 are practically a repetition of the same question. Question No. 4 is a repetition of question No. 3. Therefore, the question No. 4 is deleted. Questions 5 and 6 are renumbered as question Nos. 4 and 5.</p><p style="text-align: justify;">3. The assessee is a co-operative society whose members are cotton growers. The society has been established to help the members in the matter of ginning and pressing cotton and finding market for the processed cotton. The society charges fee for ginning and pressing and also collects a fee for assessing the marketing operations from members. The society contended that it is engaged in marketing of agricultural produce of its members and also processing the agricultural produce of its members and, therefore, it is entitled for deduction of the whole of amount of profit and gains of business attributable to such activities from the assessable income under s. 80P(2) of the Act. The Assessing Officer (AO) negatived this claim on the ground that s. 80P(2)(v) can be invoked only where the processing is done without the aid of power and since processing is done by the assessee with the aid of power, deduction cannot be granted. The appellate authority and the Tribunal took the view that deduction has to be granted under s. 80P(2)(iii) of the Act since the society is engaged in marketing of agricultural produce of its members. It is this decision which has given rise to question Nos. 1 and 2. Question No. 3 is incidental to the answers to question Nos. 1 and 2.</p><p style="text-align: justify;">4. Sec. 43B of the Act states, inter alia, that where sales-tax, central sales-tax and entry-tax is alleged to be paid, deduction is to be given only on actual payment and not on the basis of subsistence of liability. The AO held that payment is not proved and deleted deduction. Tribunal directed him to enquire under the question as to what extent payment has been made and to give deduction to the actual payment made. This decision has led to question No. 4. Question No. 5 is incidental to the answers to other questions.</p><p style="text-align: justify;">5. The order of the Tribunal makes it abundantly clear that deduction is granted in regard to profits from the ginning and pressing operation only because the society is engaged in marketing of agricultural produce of its members. This is under s. 80P(2)(iii) of the Act. The condition that processing shall be done without the aid of the power, seen in sub-cl. (v), is not a condition precedent with reference to sub-cl. (iii). This matter has been clarified by the Supreme Court with reference to the provisions of the Act as they stood prior to 1968 amendment [see Broach Distt. Co-operative Cotton Sales Ginning & Pressing Society Ltd. vs . CIT : [1989]177ITR418(SC) ]. In regard to the controversy arising in these cases, the amendment has not made any practical difference. The question is, therefore, covered by the decision of the Supreme Court and cannot be said to arise.</p><p style="text-align: justify;">6. The Tribunal has not granted deduction to the assessee under s. 43B of the Act in regard to the alleged payments of sales-tax, central sales-tax and entry-tax. The Tribunal only directed the AO to verify whether payment has been made and if satisfied to grant deduction. This part of the decision of the Tribunal cannot be said to have given rise to any question of law. Other questions are incidental to the alleged main questions and do not require independent consideration.</p><p style="text-align: justify;">7. For the reasons indicated above, we hold that no question of law calling for stating the case and making a reference arises for consideration in these cases. Applications are accordingly dismissed.<p style="text-align: justify;"></p><p style="text-align: justify;">', 'observations' => null, 'overruledby' => null, 'prhistory' => '', 'pubs' => '(1996)130CTR(MP)431', 'ratiodecidendi' => '', 'respondent' => 'Co-operative Processing and Marketing Society.', 'sub' => 'Direct Taxation', 'link' => null, 'circuit' => null ) ), 'casename_url' => 'commissioner-income-tax-vs-operative-processing', 'args' => array( (int) 0 => '510422', (int) 1 => 'commissioner-income-tax-vs-operative-processing' ) ) $title_for_layout = 'Commissioner of Income Tax Vs Co Operative Processing and Marketing Society - Citation 510422 - Court Judgment | ' $desc = array( 'Judgement' => array( 'id' => '510422', 'acts' => '', 'appealno' => 'MCC No. 563 of 1995 & other connected cases, 27th September, 1995', 'appellant' => 'Commissioner of Income Tax', 'authreffered' => '', 'casename' => 'Commissioner of Income Tax Vs. Co-operative Processing and Marketing Society.', 'casenote' => ' - CONSTITUTION OF INDIA 1055. Article 141; [A.K. Patnaik, C.J., Dipak Misra, Abhay Gohil, S. Samvatsar, & S.K. Gangele, JJ] Dismissal of SLP arising from decision of High Court Whether binding precedent Decision of Division Bench in Rama and Company v. State of Madhya Pradesh, [2007(II) MPJR 229] overruled by Full Bench of same High Court Prior to delivery of decision of Full Bench order passed in Division Bench decision assailed in SLP before Supreme Court Dismissal of SLP by short reasoned order, though declaration of law, but High Court is bound to follow earlier decisions in field regard being had to concept of precedents as per law laid down by Apex Court and Larger bench decision in Jabalpur Bus Operators Association, reported in [2003(1) MPJR 158]. Court clarifies that Dr. Jaidev Siddha v. Jaiprakash Siddha, 2007(2) MPJR (FB) 361; AIR 2007 MP 269 (FB) is not impliedly overruled in view of dismissal of SLP Articles 226 & 227; [A.K. Patnaik, C.J., Dipak Misra, Abhay Gohil, S. Samvatsar, & S.K. Gangele, JJ] Power to issue writ under Article 226 - [per Majority] The High Courts exercise original jurisdiction under Article 226 of the Constitution and supervisory jurisdiction and the power of superintendence under Article 227 of the Constitution. But, an eloquent and fertile one, a writ of certiorari is issued in exercise of original jurisdiction. Whenever word supervisory has been used in the context of Article 226 it is in contrast with the appellate or revisional jurisdiction. When a writ is issued under Article 226 of the Constitution in respect of Courts or tribunals it is done in exercise of original jurisdiction and the parameters are different than Article 227 of the Constitution of India. It is worth noting that the power under Article 227 was there in a different manner under the Government of India Act. Power of superintendence is distinct from the exercise of power of revisional or supervisory jurisdiction which is a facet of the power of superintendence. The confusion occurs when one applies the principle of equivalence or equates the exercise of supervisory power and power of superintendence with original or supervisory jurisdiction. There is an acceptable nuance between the concept of jurisdiction and exercise of power by certain parameters. Both do come within the fundamental concept of judicial review but the jurisdiction exercised is different when under Article 226 a writ is issued it is issued in exercise of original jurisdiction whether against a tribunal or inferior Courts or administrative authorities. The word superintendence has not been used in Article 226 of the Constitution. It is also evident that the term writs is not referred to in Article 227. On a scrutiny of Article 227 it would be crystal clear that power of superintendence conferred on the High Courts is a power that is restricted to the Courts and tribunal in relation to which it exercises jurisdiction. On the contrary the power conferred on the High Court under Article 226 is not constricted and confined to the Courts and tribunals but it extends to any person or authority. Be it noted, Article 226 as has been engrafted in the Constitution covers entirely a new area, a broader one in a larger spectrum. When the Legislature has used the terms in exercise of original jurisdiction and supervisory jurisdiction it has to be understood that they are used in contradistinction in the constitutional context as has been interpreted by the Apex Court. The words of the Section have to be understood to mean exercise of powers under Article 226 of the Constitution of India which is always original. -- M.P. SAMAJ KE KAMJOR VARGON KE KRISHI BHUMI HADAPNE SAMBANDHI KUCHAKRON SE PARITRAN TATHA MUKTI ADHINIYAM [3/1977]. Section 2: Writ appeal Maintainability from order of single Judge-When permissible Held, Maintainability of a writ appeal from an order of the learned single Judge would depend upon many an aspect and cannot be put into a strait jacket formula. It cannot be stated with mathematical exactitude. It would depend upon the pleadings in the writ petition, nature of the order passed by the single Judge, character and the contour of the order, directions issued, nomenclature given and the jurisdictional prospective in the constitutional context are to be perceived. It cannot be said in a hyper-technical manner that an order passed in a writ petition, if there is assail to the order emerging from the inferior tribunal or subordinate Courts has to be treated all the time for all purposes to be under Article 227 of the Constitution of India. It would depend upon the real nature of the order passed by the learned single Judge. The pleadings also assume immense significance. It would not be an over emphasis to state that an order in a writ petition can fit into the subtle contour of Articles 226 and 227 of the Constitution in a composite manner and they can co-inside, co-exist, overlap or imbricate. In this context it is apt to note that there may be cases where the single Judge may feel disposed or inclined to issue a writ to do full and complete justice because it is to be borne in mind that Article 226 of the Constitution is fundamentally a repository and reservoir of justice based on equity and good conscience. It will depend upon factual matrix of each case. Dr. Jaidev Siddha v. Jaiprakash Siddha, 2007(2) MPJR (FB) 361: AIR 2007 MP 269 (FB) is not impliedly overruled in view of dismissal of SLP preferred against order reported in Rama and Company v. State of Madhya Pradesh [2007 (2) MPJR 229 (DB) (MP)]. - The Tribunal only directed the AO to verify whether payment has been made and if satisfied to grant deduction.', 'caseanalysis' => null, 'casesref' => '', 'citingcases' => '', 'counselplain' => '', 'counseldef' => '', 'court' => 'Madhya Pradesh', 'court_type' => 'HC', 'decidedon' => '1995-09-27', 'deposition' => '', 'favorof' => null, 'findings' => null, 'judge' => '', 'judgement' => 'ORDER<p>BY THE COURT :</p><p>These are applications filed by the Revenue under s. 256(2) of the IT Act, 1961, for stating the case and to make reference of the following common questions :</p><p>'(i) Whether, on the facts and in the circumstances of the case, the Tribunal was justified in holding that ginning and pressing charges received from the members is allowable as an exemption though it was with the aid of power ?</p><p>(ii) Whether, on the facts and in the circumstances of the case, the Tribunal was justified in holding that the claim of the assessee though not admissible within the provisions of s. 80P(2)(v) but is admissible under s. 80P(2)(a)(iii) </p><p>(iii) Whether, on the facts and in the circumstances of the case, the Tribunal was justified in deleting interest under s. 217 </p><p>(iv) Whether, on the facts and in the circumstances of the case, the Tribunal was justified in deleting interest under s. 217 </p><p>(v) Whether, on the facts and in the circumstances of the case, Tribunal was justified in directing the Assessing Officer to verify the claim and to allow it the payment of sales-tax, central sales-tax, and entry-tax has been made before filing the returns under s. 139(1) even when the proviso was introduced w.e.f. 1st April, 1988, and not for the earlier years </p><p>(vi) Whether, on the facts and in the circumstances of the case, Tribunal was justified in deleting the penalty amounting to Rs. 1,30,000 on the ground that the foundation of levy of penalty does stand even when the Department has not accepted the same ?'</p><p>2. We have heard learned senior standing counsel for the Revenue. The assessee involved in these case is a co-operative society. The assessment years are during the period 1981 to 1985. Questions 1 and 2 are practically a repetition of the same question. Question No. 4 is a repetition of question No. 3. Therefore, the question No. 4 is deleted. Questions 5 and 6 are renumbered as question Nos. 4 and 5.</p><p>3. The assessee is a co-operative society whose members are cotton growers. The society has been established to help the members in the matter of ginning and pressing cotton and finding market for the processed cotton. The society charges fee for ginning and pressing and also collects a fee for assessing the marketing operations from members. The society contended that it is engaged in marketing of agricultural produce of its members and also processing the agricultural produce of its members and, therefore, it is entitled for deduction of the whole of amount of profit and gains of business attributable to such activities from the assessable income under s. 80P(2) of the Act. The Assessing Officer (AO) negatived this claim on the ground that s. 80P(2)(v) can be invoked only where the processing is done without the aid of power and since processing is done by the assessee with the aid of power, deduction cannot be granted. The appellate authority and the Tribunal took the view that deduction has to be granted under s. 80P(2)(iii) of the Act since the society is engaged in marketing of agricultural produce of its members. It is this decision which has given rise to question Nos. 1 and 2. Question No. 3 is incidental to the answers to question Nos. 1 and 2.</p><p>4. Sec. 43B of the Act states, inter alia, that where sales-tax, central sales-tax and entry-tax is alleged to be paid, deduction is to be given only on actual payment and not on the basis of subsistence of liability. The AO held that payment is not proved and deleted deduction. Tribunal directed him to enquire under the question as to what extent payment has been made and to give deduction to the actual payment made. This decision has led to question No. 4. Question No. 5 is incidental to the answers to other questions.</p><p>5. The order of the Tribunal makes it abundantly clear that deduction is granted in regard to profits from the ginning and pressing operation only because the society is engaged in marketing of agricultural produce of its members. This is under s. 80P(2)(iii) of the Act. The condition that processing shall be done without the aid of the power, seen in sub-cl. (v), is not a condition precedent with reference to sub-cl. (iii). This matter has been clarified by the Supreme Court with reference to the provisions of the Act as they stood prior to 1968 amendment [see Broach Distt. Co-operative Cotton Sales Ginning & Pressing Society Ltd. vs . CIT : [1989]177ITR418(SC) ]. In regard to the controversy arising in these cases, the amendment has not made any practical difference. The question is, therefore, covered by the decision of the Supreme Court and cannot be said to arise.</p><p>6. The Tribunal has not granted deduction to the assessee under s. 43B of the Act in regard to the alleged payments of sales-tax, central sales-tax and entry-tax. The Tribunal only directed the AO to verify whether payment has been made and if satisfied to grant deduction. This part of the decision of the Tribunal cannot be said to have given rise to any question of law. Other questions are incidental to the alleged main questions and do not require independent consideration.</p><p>7. For the reasons indicated above, we hold that no question of law calling for stating the case and making a reference arises for consideration in these cases. Applications are accordingly dismissed.<p></p><p>', 'observations' => null, 'overruledby' => null, 'prhistory' => '', 'pubs' => '(1996)130CTR(MP)431', 'ratiodecidendi' => '', 'respondent' => 'Co-operative Processing and Marketing Society.', 'sub' => 'Direct Taxation', 'link' => null, 'circuit' => null ) ) $casename_url = 'commissioner-income-tax-vs-operative-processing' $args = array( (int) 0 => '510422', (int) 1 => 'commissioner-income-tax-vs-operative-processing' ) $url = 'https://sooperkanoon.com/case/amp/510422/commissioner-income-tax-vs-operative-processing' $ctype = ' High Court' $content = array( (int) 0 => 'ORDER<p>BY THE COURT :', (int) 1 => '<p>These are applications filed by the Revenue under s. 256(2) of the IT Act, 1961, for stating the case and to make reference of the following common questions :', (int) 2 => '<p>'(i) Whether, on the facts and in the circumstances of the case, the Tribunal was justified in holding that ginning and pressing charges received from the members is allowable as an exemption though it was with the aid of power ?', (int) 3 => '<p>(ii) Whether, on the facts and in the circumstances of the case, the Tribunal was justified in holding that the claim of the assessee though not admissible within the provisions of s. 80P(2)(v) but is admissible under s. 80P(2)(a)(iii) ', (int) 4 => '<p>(iii) Whether, on the facts and in the circumstances of the case, the Tribunal was justified in deleting interest under s. 217 ', (int) 5 => '<p>(iv) Whether, on the facts and in the circumstances of the case, the Tribunal was justified in deleting interest under s. 217 ', (int) 6 => '<p>(v) Whether, on the facts and in the circumstances of the case, Tribunal was justified in directing the Assessing Officer to verify the claim and to allow it the payment of sales-tax, central sales-tax, and entry-tax has been made before filing the returns under s. 139(1) even when the proviso was introduced w.e.f. 1st April, 1988, and not for the earlier years ', (int) 7 => '<p>(vi) Whether, on the facts and in the circumstances of the case, Tribunal was justified in deleting the penalty amounting to Rs. 1,30,000 on the ground that the foundation of levy of penalty does stand even when the Department has not accepted the same ?'', (int) 8 => '<p>2. We have heard learned senior standing counsel for the Revenue. The assessee involved in these case is a co-operative society. The assessment years are during the period 1981 to 1985. Questions 1 and 2 are practically a repetition of the same question. Question No. 4 is a repetition of question No. 3. Therefore, the question No. 4 is deleted. Questions 5 and 6 are renumbered as question Nos. 4 and 5.', (int) 9 => '<p>3. The assessee is a co-operative society whose members are cotton growers. The society has been established to help the members in the matter of ginning and pressing cotton and finding market for the processed cotton. The society charges fee for ginning and pressing and also collects a fee for assessing the marketing operations from members. The society contended that it is engaged in marketing of agricultural produce of its members and also processing the agricultural produce of its members and, therefore, it is entitled for deduction of the whole of amount of profit and gains of business attributable to such activities from the assessable income under s. 80P(2) of the Act. The Assessing Officer (AO) negatived this claim on the ground that s. 80P(2)(v) can be invoked only where the processing is done without the aid of power and since processing is done by the assessee with the aid of power, deduction cannot be granted. The appellate authority and the Tribunal took the view that deduction has to be granted under s. 80P(2)(iii) of the Act since the society is engaged in marketing of agricultural produce of its members. It is this decision which has given rise to question Nos. 1 and 2. Question No. 3 is incidental to the answers to question Nos. 1 and 2.', (int) 10 => '<p>4. Sec. 43B of the Act states, inter alia, that where sales-tax, central sales-tax and entry-tax is alleged to be paid, deduction is to be given only on actual payment and not on the basis of subsistence of liability. The AO held that payment is not proved and deleted deduction. Tribunal directed him to enquire under the question as to what extent payment has been made and to give deduction to the actual payment made. This decision has led to question No. 4. Question No. 5 is incidental to the answers to other questions.', (int) 11 => '<p>5. The order of the Tribunal makes it abundantly clear that deduction is granted in regard to profits from the ginning and pressing operation only because the society is engaged in marketing of agricultural produce of its members. This is under s. 80P(2)(iii) of the Act. The condition that processing shall be done without the aid of the power, seen in sub-cl. (v), is not a condition precedent with reference to sub-cl. (iii). This matter has been clarified by the Supreme Court with reference to the provisions of the Act as they stood prior to 1968 amendment [see Broach Distt. Co-operative Cotton Sales Ginning & Pressing Society Ltd. vs . CIT : [1989]177ITR418(SC) ]. In regard to the controversy arising in these cases, the amendment has not made any practical difference. The question is, therefore, covered by the decision of the Supreme Court and cannot be said to arise.', (int) 12 => '<p>6. The Tribunal has not granted deduction to the assessee under s. 43B of the Act in regard to the alleged payments of sales-tax, central sales-tax and entry-tax. The Tribunal only directed the AO to verify whether payment has been made and if satisfied to grant deduction. This part of the decision of the Tribunal cannot be said to have given rise to any question of law. Other questions are incidental to the alleged main questions and do not require independent consideration.', (int) 13 => '<p>7. For the reasons indicated above, we hold that no question of law calling for stating the case and making a reference arises for consideration in these cases. Applications are accordingly dismissed.<p>', (int) 14 => '<p>' ) $paragraphAfter = (int) 1 $cnt = (int) 15 $i = (int) 8include - APP/View/Case/amp.ctp, line 144 View::_evaluate() - CORE/Cake/View/View.php, line 971 View::_render() - CORE/Cake/View/View.php, line 933 View::render() - CORE/Cake/View/View.php, line 473 Controller::render() - CORE/Cake/Controller/Controller.php, line 963 Dispatcher::_invoke() - CORE/Cake/Routing/Dispatcher.php, line 200 Dispatcher::dispatch() - CORE/Cake/Routing/Dispatcher.php, line 167 [main] - APP/webroot/index.php, line 109
2. We have heard learned senior standing counsel for the Revenue. The assessee involved in these case is a co-operative society. The assessment years are during the period 1981 to 1985. Questions 1 and 2 are practically a repetition of the same question. Question No. 4 is a repetition of question No. 3. Therefore, the question No. 4 is deleted. Questions 5 and 6 are renumbered as question Nos. 4 and 5.
Notice (8): Undefined variable: query [APP/View/Case/amp.ctp, line 144]Code Contextecho $this->Adsense->display('responsive_rect');}echo html_entity_decode($this->Wand->highlight($content[$i], $query));$viewFile = '/home/legalcrystal/app/View/Case/amp.ctp' $dataForView = array( 'title_for_layout' => 'Commissioner of Income Tax Vs Co Operative Processing and Marketing Society - Citation 510422 - Court Judgment | ', 'desc' => array( 'Judgement' => array( 'id' => '510422', 'acts' => '', 'appealno' => 'MCC No. 563 of 1995 & other connected cases, 27th September, 1995', 'appellant' => 'Commissioner of Income Tax', 'authreffered' => '', 'casename' => 'Commissioner of Income Tax Vs. Co-operative Processing and Marketing Society.', 'casenote' => ' - CONSTITUTION OF INDIA 1055. Article 141; [A.K. Patnaik, C.J., Dipak Misra, Abhay Gohil, S. Samvatsar, & S.K. Gangele, JJ] Dismissal of SLP arising from decision of High Court Whether binding precedent Decision of Division Bench in Rama and Company v. State of Madhya Pradesh, [2007(II) MPJR 229] overruled by Full Bench of same High Court Prior to delivery of decision of Full Bench order passed in Division Bench decision assailed in SLP before Supreme Court Dismissal of SLP by short reasoned order, though declaration of law, but High Court is bound to follow earlier decisions in field regard being had to concept of precedents as per law laid down by Apex Court and Larger bench decision in Jabalpur Bus Operators Association, reported in [2003(1) MPJR 158]. Court clarifies that Dr. Jaidev Siddha v. Jaiprakash Siddha, 2007(2) MPJR (FB) 361; AIR 2007 MP 269 (FB) is not impliedly overruled in view of dismissal of SLP Articles 226 & 227; [A.K. Patnaik, C.J., Dipak Misra, Abhay Gohil, S. Samvatsar, & S.K. Gangele, JJ] Power to issue writ under Article 226 - [per Majority] The High Courts exercise original jurisdiction under Article 226 of the Constitution and supervisory jurisdiction and the power of superintendence under Article 227 of the Constitution. But, an eloquent and fertile one, a writ of certiorari is issued in exercise of original jurisdiction. Whenever word supervisory has been used in the context of Article 226 it is in contrast with the appellate or revisional jurisdiction. When a writ is issued under Article 226 of the Constitution in respect of Courts or tribunals it is done in exercise of original jurisdiction and the parameters are different than Article 227 of the Constitution of India. It is worth noting that the power under Article 227 was there in a different manner under the Government of India Act. Power of superintendence is distinct from the exercise of power of revisional or supervisory jurisdiction which is a facet of the power of superintendence. The confusion occurs when one applies the principle of equivalence or equates the exercise of supervisory power and power of superintendence with original or supervisory jurisdiction. There is an acceptable nuance between the concept of jurisdiction and exercise of power by certain parameters. Both do come within the fundamental concept of judicial review but the jurisdiction exercised is different when under Article 226 a writ is issued it is issued in exercise of original jurisdiction whether against a tribunal or inferior Courts or administrative authorities. The word superintendence has not been used in Article 226 of the Constitution. It is also evident that the term writs is not referred to in Article 227. On a scrutiny of Article 227 it would be crystal clear that power of superintendence conferred on the High Courts is a power that is restricted to the Courts and tribunal in relation to which it exercises jurisdiction. On the contrary the power conferred on the High Court under Article 226 is not constricted and confined to the Courts and tribunals but it extends to any person or authority. Be it noted, Article 226 as has been engrafted in the Constitution covers entirely a new area, a broader one in a larger spectrum. When the Legislature has used the terms in exercise of original jurisdiction and supervisory jurisdiction it has to be understood that they are used in contradistinction in the constitutional context as has been interpreted by the Apex Court. The words of the Section have to be understood to mean exercise of powers under Article 226 of the Constitution of India which is always original. -- M.P. SAMAJ KE KAMJOR VARGON KE KRISHI BHUMI HADAPNE SAMBANDHI KUCHAKRON SE PARITRAN TATHA MUKTI ADHINIYAM [3/1977]. Section 2: Writ appeal Maintainability from order of single Judge-When permissible Held, Maintainability of a writ appeal from an order of the learned single Judge would depend upon many an aspect and cannot be put into a strait jacket formula. It cannot be stated with mathematical exactitude. It would depend upon the pleadings in the writ petition, nature of the order passed by the single Judge, character and the contour of the order, directions issued, nomenclature given and the jurisdictional prospective in the constitutional context are to be perceived. It cannot be said in a hyper-technical manner that an order passed in a writ petition, if there is assail to the order emerging from the inferior tribunal or subordinate Courts has to be treated all the time for all purposes to be under Article 227 of the Constitution of India. It would depend upon the real nature of the order passed by the learned single Judge. The pleadings also assume immense significance. It would not be an over emphasis to state that an order in a writ petition can fit into the subtle contour of Articles 226 and 227 of the Constitution in a composite manner and they can co-inside, co-exist, overlap or imbricate. In this context it is apt to note that there may be cases where the single Judge may feel disposed or inclined to issue a writ to do full and complete justice because it is to be borne in mind that Article 226 of the Constitution is fundamentally a repository and reservoir of justice based on equity and good conscience. It will depend upon factual matrix of each case. Dr. Jaidev Siddha v. Jaiprakash Siddha, 2007(2) MPJR (FB) 361: AIR 2007 MP 269 (FB) is not impliedly overruled in view of dismissal of SLP preferred against order reported in Rama and Company v. State of Madhya Pradesh [2007 (2) MPJR 229 (DB) (MP)]. - The Tribunal only directed the AO to verify whether payment has been made and if satisfied to grant deduction.', 'caseanalysis' => null, 'casesref' => '', 'citingcases' => '', 'counselplain' => '', 'counseldef' => '', 'court' => 'Madhya Pradesh', 'court_type' => 'HC', 'decidedon' => '1995-09-27', 'deposition' => '', 'favorof' => null, 'findings' => null, 'judge' => '', 'judgement' => 'ORDER<p style="text-align: justify;">BY THE COURT :</p><p style="text-align: justify;">These are applications filed by the Revenue under s. 256(2) of the IT Act, 1961, for stating the case and to make reference of the following common questions :</p><p style="text-align: justify;">'(i) Whether, on the facts and in the circumstances of the case, the Tribunal was justified in holding that ginning and pressing charges received from the members is allowable as an exemption though it was with the aid of power ?</p><p style="text-align: justify;">(ii) Whether, on the facts and in the circumstances of the case, the Tribunal was justified in holding that the claim of the assessee though not admissible within the provisions of s. 80P(2)(v) but is admissible under s. 80P(2)(a)(iii) </p><p style="text-align: justify;">(iii) Whether, on the facts and in the circumstances of the case, the Tribunal was justified in deleting interest under s. 217 </p><p style="text-align: justify;">(iv) Whether, on the facts and in the circumstances of the case, the Tribunal was justified in deleting interest under s. 217 </p><p style="text-align: justify;">(v) Whether, on the facts and in the circumstances of the case, Tribunal was justified in directing the Assessing Officer to verify the claim and to allow it the payment of sales-tax, central sales-tax, and entry-tax has been made before filing the returns under s. 139(1) even when the proviso was introduced w.e.f. 1st April, 1988, and not for the earlier years </p><p style="text-align: justify;">(vi) Whether, on the facts and in the circumstances of the case, Tribunal was justified in deleting the penalty amounting to Rs. 1,30,000 on the ground that the foundation of levy of penalty does stand even when the Department has not accepted the same ?'</p><p style="text-align: justify;">2. We have heard learned senior standing counsel for the Revenue. The assessee involved in these case is a co-operative society. The assessment years are during the period 1981 to 1985. Questions 1 and 2 are practically a repetition of the same question. Question No. 4 is a repetition of question No. 3. Therefore, the question No. 4 is deleted. Questions 5 and 6 are renumbered as question Nos. 4 and 5.</p><p style="text-align: justify;">3. The assessee is a co-operative society whose members are cotton growers. The society has been established to help the members in the matter of ginning and pressing cotton and finding market for the processed cotton. The society charges fee for ginning and pressing and also collects a fee for assessing the marketing operations from members. The society contended that it is engaged in marketing of agricultural produce of its members and also processing the agricultural produce of its members and, therefore, it is entitled for deduction of the whole of amount of profit and gains of business attributable to such activities from the assessable income under s. 80P(2) of the Act. The Assessing Officer (AO) negatived this claim on the ground that s. 80P(2)(v) can be invoked only where the processing is done without the aid of power and since processing is done by the assessee with the aid of power, deduction cannot be granted. The appellate authority and the Tribunal took the view that deduction has to be granted under s. 80P(2)(iii) of the Act since the society is engaged in marketing of agricultural produce of its members. It is this decision which has given rise to question Nos. 1 and 2. Question No. 3 is incidental to the answers to question Nos. 1 and 2.</p><p style="text-align: justify;">4. Sec. 43B of the Act states, inter alia, that where sales-tax, central sales-tax and entry-tax is alleged to be paid, deduction is to be given only on actual payment and not on the basis of subsistence of liability. The AO held that payment is not proved and deleted deduction. Tribunal directed him to enquire under the question as to what extent payment has been made and to give deduction to the actual payment made. This decision has led to question No. 4. Question No. 5 is incidental to the answers to other questions.</p><p style="text-align: justify;">5. The order of the Tribunal makes it abundantly clear that deduction is granted in regard to profits from the ginning and pressing operation only because the society is engaged in marketing of agricultural produce of its members. This is under s. 80P(2)(iii) of the Act. The condition that processing shall be done without the aid of the power, seen in sub-cl. (v), is not a condition precedent with reference to sub-cl. (iii). This matter has been clarified by the Supreme Court with reference to the provisions of the Act as they stood prior to 1968 amendment [see Broach Distt. Co-operative Cotton Sales Ginning & Pressing Society Ltd. vs . CIT : [1989]177ITR418(SC) ]. In regard to the controversy arising in these cases, the amendment has not made any practical difference. The question is, therefore, covered by the decision of the Supreme Court and cannot be said to arise.</p><p style="text-align: justify;">6. The Tribunal has not granted deduction to the assessee under s. 43B of the Act in regard to the alleged payments of sales-tax, central sales-tax and entry-tax. The Tribunal only directed the AO to verify whether payment has been made and if satisfied to grant deduction. This part of the decision of the Tribunal cannot be said to have given rise to any question of law. Other questions are incidental to the alleged main questions and do not require independent consideration.</p><p style="text-align: justify;">7. For the reasons indicated above, we hold that no question of law calling for stating the case and making a reference arises for consideration in these cases. Applications are accordingly dismissed.<p style="text-align: justify;"></p><p style="text-align: justify;">', 'observations' => null, 'overruledby' => null, 'prhistory' => '', 'pubs' => '(1996)130CTR(MP)431', 'ratiodecidendi' => '', 'respondent' => 'Co-operative Processing and Marketing Society.', 'sub' => 'Direct Taxation', 'link' => null, 'circuit' => null ) ), 'casename_url' => 'commissioner-income-tax-vs-operative-processing', 'args' => array( (int) 0 => '510422', (int) 1 => 'commissioner-income-tax-vs-operative-processing' ) ) $title_for_layout = 'Commissioner of Income Tax Vs Co Operative Processing and Marketing Society - Citation 510422 - Court Judgment | ' $desc = array( 'Judgement' => array( 'id' => '510422', 'acts' => '', 'appealno' => 'MCC No. 563 of 1995 & other connected cases, 27th September, 1995', 'appellant' => 'Commissioner of Income Tax', 'authreffered' => '', 'casename' => 'Commissioner of Income Tax Vs. Co-operative Processing and Marketing Society.', 'casenote' => ' - CONSTITUTION OF INDIA 1055. Article 141; [A.K. Patnaik, C.J., Dipak Misra, Abhay Gohil, S. Samvatsar, & S.K. Gangele, JJ] Dismissal of SLP arising from decision of High Court Whether binding precedent Decision of Division Bench in Rama and Company v. State of Madhya Pradesh, [2007(II) MPJR 229] overruled by Full Bench of same High Court Prior to delivery of decision of Full Bench order passed in Division Bench decision assailed in SLP before Supreme Court Dismissal of SLP by short reasoned order, though declaration of law, but High Court is bound to follow earlier decisions in field regard being had to concept of precedents as per law laid down by Apex Court and Larger bench decision in Jabalpur Bus Operators Association, reported in [2003(1) MPJR 158]. Court clarifies that Dr. Jaidev Siddha v. Jaiprakash Siddha, 2007(2) MPJR (FB) 361; AIR 2007 MP 269 (FB) is not impliedly overruled in view of dismissal of SLP Articles 226 & 227; [A.K. Patnaik, C.J., Dipak Misra, Abhay Gohil, S. Samvatsar, & S.K. Gangele, JJ] Power to issue writ under Article 226 - [per Majority] The High Courts exercise original jurisdiction under Article 226 of the Constitution and supervisory jurisdiction and the power of superintendence under Article 227 of the Constitution. But, an eloquent and fertile one, a writ of certiorari is issued in exercise of original jurisdiction. Whenever word supervisory has been used in the context of Article 226 it is in contrast with the appellate or revisional jurisdiction. When a writ is issued under Article 226 of the Constitution in respect of Courts or tribunals it is done in exercise of original jurisdiction and the parameters are different than Article 227 of the Constitution of India. It is worth noting that the power under Article 227 was there in a different manner under the Government of India Act. Power of superintendence is distinct from the exercise of power of revisional or supervisory jurisdiction which is a facet of the power of superintendence. The confusion occurs when one applies the principle of equivalence or equates the exercise of supervisory power and power of superintendence with original or supervisory jurisdiction. There is an acceptable nuance between the concept of jurisdiction and exercise of power by certain parameters. Both do come within the fundamental concept of judicial review but the jurisdiction exercised is different when under Article 226 a writ is issued it is issued in exercise of original jurisdiction whether against a tribunal or inferior Courts or administrative authorities. The word superintendence has not been used in Article 226 of the Constitution. It is also evident that the term writs is not referred to in Article 227. On a scrutiny of Article 227 it would be crystal clear that power of superintendence conferred on the High Courts is a power that is restricted to the Courts and tribunal in relation to which it exercises jurisdiction. On the contrary the power conferred on the High Court under Article 226 is not constricted and confined to the Courts and tribunals but it extends to any person or authority. Be it noted, Article 226 as has been engrafted in the Constitution covers entirely a new area, a broader one in a larger spectrum. When the Legislature has used the terms in exercise of original jurisdiction and supervisory jurisdiction it has to be understood that they are used in contradistinction in the constitutional context as has been interpreted by the Apex Court. The words of the Section have to be understood to mean exercise of powers under Article 226 of the Constitution of India which is always original. -- M.P. SAMAJ KE KAMJOR VARGON KE KRISHI BHUMI HADAPNE SAMBANDHI KUCHAKRON SE PARITRAN TATHA MUKTI ADHINIYAM [3/1977]. Section 2: Writ appeal Maintainability from order of single Judge-When permissible Held, Maintainability of a writ appeal from an order of the learned single Judge would depend upon many an aspect and cannot be put into a strait jacket formula. It cannot be stated with mathematical exactitude. It would depend upon the pleadings in the writ petition, nature of the order passed by the single Judge, character and the contour of the order, directions issued, nomenclature given and the jurisdictional prospective in the constitutional context are to be perceived. It cannot be said in a hyper-technical manner that an order passed in a writ petition, if there is assail to the order emerging from the inferior tribunal or subordinate Courts has to be treated all the time for all purposes to be under Article 227 of the Constitution of India. It would depend upon the real nature of the order passed by the learned single Judge. The pleadings also assume immense significance. It would not be an over emphasis to state that an order in a writ petition can fit into the subtle contour of Articles 226 and 227 of the Constitution in a composite manner and they can co-inside, co-exist, overlap or imbricate. In this context it is apt to note that there may be cases where the single Judge may feel disposed or inclined to issue a writ to do full and complete justice because it is to be borne in mind that Article 226 of the Constitution is fundamentally a repository and reservoir of justice based on equity and good conscience. It will depend upon factual matrix of each case. Dr. Jaidev Siddha v. Jaiprakash Siddha, 2007(2) MPJR (FB) 361: AIR 2007 MP 269 (FB) is not impliedly overruled in view of dismissal of SLP preferred against order reported in Rama and Company v. State of Madhya Pradesh [2007 (2) MPJR 229 (DB) (MP)]. - The Tribunal only directed the AO to verify whether payment has been made and if satisfied to grant deduction.', 'caseanalysis' => null, 'casesref' => '', 'citingcases' => '', 'counselplain' => '', 'counseldef' => '', 'court' => 'Madhya Pradesh', 'court_type' => 'HC', 'decidedon' => '1995-09-27', 'deposition' => '', 'favorof' => null, 'findings' => null, 'judge' => '', 'judgement' => 'ORDER<p>BY THE COURT :</p><p>These are applications filed by the Revenue under s. 256(2) of the IT Act, 1961, for stating the case and to make reference of the following common questions :</p><p>'(i) Whether, on the facts and in the circumstances of the case, the Tribunal was justified in holding that ginning and pressing charges received from the members is allowable as an exemption though it was with the aid of power ?</p><p>(ii) Whether, on the facts and in the circumstances of the case, the Tribunal was justified in holding that the claim of the assessee though not admissible within the provisions of s. 80P(2)(v) but is admissible under s. 80P(2)(a)(iii) </p><p>(iii) Whether, on the facts and in the circumstances of the case, the Tribunal was justified in deleting interest under s. 217 </p><p>(iv) Whether, on the facts and in the circumstances of the case, the Tribunal was justified in deleting interest under s. 217 </p><p>(v) Whether, on the facts and in the circumstances of the case, Tribunal was justified in directing the Assessing Officer to verify the claim and to allow it the payment of sales-tax, central sales-tax, and entry-tax has been made before filing the returns under s. 139(1) even when the proviso was introduced w.e.f. 1st April, 1988, and not for the earlier years </p><p>(vi) Whether, on the facts and in the circumstances of the case, Tribunal was justified in deleting the penalty amounting to Rs. 1,30,000 on the ground that the foundation of levy of penalty does stand even when the Department has not accepted the same ?'</p><p>2. We have heard learned senior standing counsel for the Revenue. The assessee involved in these case is a co-operative society. The assessment years are during the period 1981 to 1985. Questions 1 and 2 are practically a repetition of the same question. Question No. 4 is a repetition of question No. 3. Therefore, the question No. 4 is deleted. Questions 5 and 6 are renumbered as question Nos. 4 and 5.</p><p>3. The assessee is a co-operative society whose members are cotton growers. The society has been established to help the members in the matter of ginning and pressing cotton and finding market for the processed cotton. The society charges fee for ginning and pressing and also collects a fee for assessing the marketing operations from members. The society contended that it is engaged in marketing of agricultural produce of its members and also processing the agricultural produce of its members and, therefore, it is entitled for deduction of the whole of amount of profit and gains of business attributable to such activities from the assessable income under s. 80P(2) of the Act. The Assessing Officer (AO) negatived this claim on the ground that s. 80P(2)(v) can be invoked only where the processing is done without the aid of power and since processing is done by the assessee with the aid of power, deduction cannot be granted. The appellate authority and the Tribunal took the view that deduction has to be granted under s. 80P(2)(iii) of the Act since the society is engaged in marketing of agricultural produce of its members. It is this decision which has given rise to question Nos. 1 and 2. Question No. 3 is incidental to the answers to question Nos. 1 and 2.</p><p>4. Sec. 43B of the Act states, inter alia, that where sales-tax, central sales-tax and entry-tax is alleged to be paid, deduction is to be given only on actual payment and not on the basis of subsistence of liability. The AO held that payment is not proved and deleted deduction. Tribunal directed him to enquire under the question as to what extent payment has been made and to give deduction to the actual payment made. This decision has led to question No. 4. Question No. 5 is incidental to the answers to other questions.</p><p>5. The order of the Tribunal makes it abundantly clear that deduction is granted in regard to profits from the ginning and pressing operation only because the society is engaged in marketing of agricultural produce of its members. This is under s. 80P(2)(iii) of the Act. The condition that processing shall be done without the aid of the power, seen in sub-cl. (v), is not a condition precedent with reference to sub-cl. (iii). This matter has been clarified by the Supreme Court with reference to the provisions of the Act as they stood prior to 1968 amendment [see Broach Distt. Co-operative Cotton Sales Ginning & Pressing Society Ltd. vs . CIT : [1989]177ITR418(SC) ]. In regard to the controversy arising in these cases, the amendment has not made any practical difference. The question is, therefore, covered by the decision of the Supreme Court and cannot be said to arise.</p><p>6. The Tribunal has not granted deduction to the assessee under s. 43B of the Act in regard to the alleged payments of sales-tax, central sales-tax and entry-tax. The Tribunal only directed the AO to verify whether payment has been made and if satisfied to grant deduction. This part of the decision of the Tribunal cannot be said to have given rise to any question of law. Other questions are incidental to the alleged main questions and do not require independent consideration.</p><p>7. For the reasons indicated above, we hold that no question of law calling for stating the case and making a reference arises for consideration in these cases. Applications are accordingly dismissed.<p></p><p>', 'observations' => null, 'overruledby' => null, 'prhistory' => '', 'pubs' => '(1996)130CTR(MP)431', 'ratiodecidendi' => '', 'respondent' => 'Co-operative Processing and Marketing Society.', 'sub' => 'Direct Taxation', 'link' => null, 'circuit' => null ) ) $casename_url = 'commissioner-income-tax-vs-operative-processing' $args = array( (int) 0 => '510422', (int) 1 => 'commissioner-income-tax-vs-operative-processing' ) $url = 'https://sooperkanoon.com/case/amp/510422/commissioner-income-tax-vs-operative-processing' $ctype = ' High Court' $content = array( (int) 0 => 'ORDER<p>BY THE COURT :', (int) 1 => '<p>These are applications filed by the Revenue under s. 256(2) of the IT Act, 1961, for stating the case and to make reference of the following common questions :', (int) 2 => '<p>'(i) Whether, on the facts and in the circumstances of the case, the Tribunal was justified in holding that ginning and pressing charges received from the members is allowable as an exemption though it was with the aid of power ?', (int) 3 => '<p>(ii) Whether, on the facts and in the circumstances of the case, the Tribunal was justified in holding that the claim of the assessee though not admissible within the provisions of s. 80P(2)(v) but is admissible under s. 80P(2)(a)(iii) ', (int) 4 => '<p>(iii) Whether, on the facts and in the circumstances of the case, the Tribunal was justified in deleting interest under s. 217 ', (int) 5 => '<p>(iv) Whether, on the facts and in the circumstances of the case, the Tribunal was justified in deleting interest under s. 217 ', (int) 6 => '<p>(v) Whether, on the facts and in the circumstances of the case, Tribunal was justified in directing the Assessing Officer to verify the claim and to allow it the payment of sales-tax, central sales-tax, and entry-tax has been made before filing the returns under s. 139(1) even when the proviso was introduced w.e.f. 1st April, 1988, and not for the earlier years ', (int) 7 => '<p>(vi) Whether, on the facts and in the circumstances of the case, Tribunal was justified in deleting the penalty amounting to Rs. 1,30,000 on the ground that the foundation of levy of penalty does stand even when the Department has not accepted the same ?'', (int) 8 => '<p>2. We have heard learned senior standing counsel for the Revenue. The assessee involved in these case is a co-operative society. The assessment years are during the period 1981 to 1985. Questions 1 and 2 are practically a repetition of the same question. Question No. 4 is a repetition of question No. 3. Therefore, the question No. 4 is deleted. Questions 5 and 6 are renumbered as question Nos. 4 and 5.', (int) 9 => '<p>3. The assessee is a co-operative society whose members are cotton growers. The society has been established to help the members in the matter of ginning and pressing cotton and finding market for the processed cotton. The society charges fee for ginning and pressing and also collects a fee for assessing the marketing operations from members. The society contended that it is engaged in marketing of agricultural produce of its members and also processing the agricultural produce of its members and, therefore, it is entitled for deduction of the whole of amount of profit and gains of business attributable to such activities from the assessable income under s. 80P(2) of the Act. The Assessing Officer (AO) negatived this claim on the ground that s. 80P(2)(v) can be invoked only where the processing is done without the aid of power and since processing is done by the assessee with the aid of power, deduction cannot be granted. The appellate authority and the Tribunal took the view that deduction has to be granted under s. 80P(2)(iii) of the Act since the society is engaged in marketing of agricultural produce of its members. It is this decision which has given rise to question Nos. 1 and 2. Question No. 3 is incidental to the answers to question Nos. 1 and 2.', (int) 10 => '<p>4. Sec. 43B of the Act states, inter alia, that where sales-tax, central sales-tax and entry-tax is alleged to be paid, deduction is to be given only on actual payment and not on the basis of subsistence of liability. The AO held that payment is not proved and deleted deduction. Tribunal directed him to enquire under the question as to what extent payment has been made and to give deduction to the actual payment made. This decision has led to question No. 4. Question No. 5 is incidental to the answers to other questions.', (int) 11 => '<p>5. The order of the Tribunal makes it abundantly clear that deduction is granted in regard to profits from the ginning and pressing operation only because the society is engaged in marketing of agricultural produce of its members. This is under s. 80P(2)(iii) of the Act. The condition that processing shall be done without the aid of the power, seen in sub-cl. (v), is not a condition precedent with reference to sub-cl. (iii). This matter has been clarified by the Supreme Court with reference to the provisions of the Act as they stood prior to 1968 amendment [see Broach Distt. Co-operative Cotton Sales Ginning & Pressing Society Ltd. vs . CIT : [1989]177ITR418(SC) ]. In regard to the controversy arising in these cases, the amendment has not made any practical difference. The question is, therefore, covered by the decision of the Supreme Court and cannot be said to arise.', (int) 12 => '<p>6. The Tribunal has not granted deduction to the assessee under s. 43B of the Act in regard to the alleged payments of sales-tax, central sales-tax and entry-tax. The Tribunal only directed the AO to verify whether payment has been made and if satisfied to grant deduction. This part of the decision of the Tribunal cannot be said to have given rise to any question of law. Other questions are incidental to the alleged main questions and do not require independent consideration.', (int) 13 => '<p>7. For the reasons indicated above, we hold that no question of law calling for stating the case and making a reference arises for consideration in these cases. Applications are accordingly dismissed.<p>', (int) 14 => '<p>' ) $paragraphAfter = (int) 1 $cnt = (int) 15 $i = (int) 9include - APP/View/Case/amp.ctp, line 144 View::_evaluate() - CORE/Cake/View/View.php, line 971 View::_render() - CORE/Cake/View/View.php, line 933 View::render() - CORE/Cake/View/View.php, line 473 Controller::render() - CORE/Cake/Controller/Controller.php, line 963 Dispatcher::_invoke() - CORE/Cake/Routing/Dispatcher.php, line 200 Dispatcher::dispatch() - CORE/Cake/Routing/Dispatcher.php, line 167 [main] - APP/webroot/index.php, line 109
3. The assessee is a co-operative society whose members are cotton growers. The society has been established to help the members in the matter of ginning and pressing cotton and finding market for the processed cotton. The society charges fee for ginning and pressing and also collects a fee for assessing the marketing operations from members. The society contended that it is engaged in marketing of agricultural produce of its members and also processing the agricultural produce of its members and, therefore, it is entitled for deduction of the whole of amount of profit and gains of business attributable to such activities from the assessable income under s. 80P(2) of the Act. The Assessing Officer (AO) negatived this claim on the ground that s. 80P(2)(v) can be invoked only where the processing is done without the aid of power and since processing is done by the assessee with the aid of power, deduction cannot be granted. The appellate authority and the Tribunal took the view that deduction has to be granted under s. 80P(2)(iii) of the Act since the society is engaged in marketing of agricultural produce of its members. It is this decision which has given rise to question Nos. 1 and 2. Question No. 3 is incidental to the answers to question Nos. 1 and 2.
Notice (8): Undefined variable: query [APP/View/Case/amp.ctp, line 144]Code Contextecho $this->Adsense->display('responsive_rect');}echo html_entity_decode($this->Wand->highlight($content[$i], $query));$viewFile = '/home/legalcrystal/app/View/Case/amp.ctp' $dataForView = array( 'title_for_layout' => 'Commissioner of Income Tax Vs Co Operative Processing and Marketing Society - Citation 510422 - Court Judgment | ', 'desc' => array( 'Judgement' => array( 'id' => '510422', 'acts' => '', 'appealno' => 'MCC No. 563 of 1995 & other connected cases, 27th September, 1995', 'appellant' => 'Commissioner of Income Tax', 'authreffered' => '', 'casename' => 'Commissioner of Income Tax Vs. Co-operative Processing and Marketing Society.', 'casenote' => ' - CONSTITUTION OF INDIA 1055. Article 141; [A.K. Patnaik, C.J., Dipak Misra, Abhay Gohil, S. Samvatsar, & S.K. Gangele, JJ] Dismissal of SLP arising from decision of High Court Whether binding precedent Decision of Division Bench in Rama and Company v. State of Madhya Pradesh, [2007(II) MPJR 229] overruled by Full Bench of same High Court Prior to delivery of decision of Full Bench order passed in Division Bench decision assailed in SLP before Supreme Court Dismissal of SLP by short reasoned order, though declaration of law, but High Court is bound to follow earlier decisions in field regard being had to concept of precedents as per law laid down by Apex Court and Larger bench decision in Jabalpur Bus Operators Association, reported in [2003(1) MPJR 158]. Court clarifies that Dr. Jaidev Siddha v. Jaiprakash Siddha, 2007(2) MPJR (FB) 361; AIR 2007 MP 269 (FB) is not impliedly overruled in view of dismissal of SLP Articles 226 & 227; [A.K. Patnaik, C.J., Dipak Misra, Abhay Gohil, S. Samvatsar, & S.K. Gangele, JJ] Power to issue writ under Article 226 - [per Majority] The High Courts exercise original jurisdiction under Article 226 of the Constitution and supervisory jurisdiction and the power of superintendence under Article 227 of the Constitution. But, an eloquent and fertile one, a writ of certiorari is issued in exercise of original jurisdiction. Whenever word supervisory has been used in the context of Article 226 it is in contrast with the appellate or revisional jurisdiction. When a writ is issued under Article 226 of the Constitution in respect of Courts or tribunals it is done in exercise of original jurisdiction and the parameters are different than Article 227 of the Constitution of India. It is worth noting that the power under Article 227 was there in a different manner under the Government of India Act. Power of superintendence is distinct from the exercise of power of revisional or supervisory jurisdiction which is a facet of the power of superintendence. The confusion occurs when one applies the principle of equivalence or equates the exercise of supervisory power and power of superintendence with original or supervisory jurisdiction. There is an acceptable nuance between the concept of jurisdiction and exercise of power by certain parameters. Both do come within the fundamental concept of judicial review but the jurisdiction exercised is different when under Article 226 a writ is issued it is issued in exercise of original jurisdiction whether against a tribunal or inferior Courts or administrative authorities. The word superintendence has not been used in Article 226 of the Constitution. It is also evident that the term writs is not referred to in Article 227. On a scrutiny of Article 227 it would be crystal clear that power of superintendence conferred on the High Courts is a power that is restricted to the Courts and tribunal in relation to which it exercises jurisdiction. On the contrary the power conferred on the High Court under Article 226 is not constricted and confined to the Courts and tribunals but it extends to any person or authority. Be it noted, Article 226 as has been engrafted in the Constitution covers entirely a new area, a broader one in a larger spectrum. When the Legislature has used the terms in exercise of original jurisdiction and supervisory jurisdiction it has to be understood that they are used in contradistinction in the constitutional context as has been interpreted by the Apex Court. The words of the Section have to be understood to mean exercise of powers under Article 226 of the Constitution of India which is always original. -- M.P. SAMAJ KE KAMJOR VARGON KE KRISHI BHUMI HADAPNE SAMBANDHI KUCHAKRON SE PARITRAN TATHA MUKTI ADHINIYAM [3/1977]. Section 2: Writ appeal Maintainability from order of single Judge-When permissible Held, Maintainability of a writ appeal from an order of the learned single Judge would depend upon many an aspect and cannot be put into a strait jacket formula. It cannot be stated with mathematical exactitude. It would depend upon the pleadings in the writ petition, nature of the order passed by the single Judge, character and the contour of the order, directions issued, nomenclature given and the jurisdictional prospective in the constitutional context are to be perceived. It cannot be said in a hyper-technical manner that an order passed in a writ petition, if there is assail to the order emerging from the inferior tribunal or subordinate Courts has to be treated all the time for all purposes to be under Article 227 of the Constitution of India. It would depend upon the real nature of the order passed by the learned single Judge. The pleadings also assume immense significance. It would not be an over emphasis to state that an order in a writ petition can fit into the subtle contour of Articles 226 and 227 of the Constitution in a composite manner and they can co-inside, co-exist, overlap or imbricate. In this context it is apt to note that there may be cases where the single Judge may feel disposed or inclined to issue a writ to do full and complete justice because it is to be borne in mind that Article 226 of the Constitution is fundamentally a repository and reservoir of justice based on equity and good conscience. It will depend upon factual matrix of each case. Dr. Jaidev Siddha v. Jaiprakash Siddha, 2007(2) MPJR (FB) 361: AIR 2007 MP 269 (FB) is not impliedly overruled in view of dismissal of SLP preferred against order reported in Rama and Company v. State of Madhya Pradesh [2007 (2) MPJR 229 (DB) (MP)]. - The Tribunal only directed the AO to verify whether payment has been made and if satisfied to grant deduction.', 'caseanalysis' => null, 'casesref' => '', 'citingcases' => '', 'counselplain' => '', 'counseldef' => '', 'court' => 'Madhya Pradesh', 'court_type' => 'HC', 'decidedon' => '1995-09-27', 'deposition' => '', 'favorof' => null, 'findings' => null, 'judge' => '', 'judgement' => 'ORDER<p style="text-align: justify;">BY THE COURT :</p><p style="text-align: justify;">These are applications filed by the Revenue under s. 256(2) of the IT Act, 1961, for stating the case and to make reference of the following common questions :</p><p style="text-align: justify;">'(i) Whether, on the facts and in the circumstances of the case, the Tribunal was justified in holding that ginning and pressing charges received from the members is allowable as an exemption though it was with the aid of power ?</p><p style="text-align: justify;">(ii) Whether, on the facts and in the circumstances of the case, the Tribunal was justified in holding that the claim of the assessee though not admissible within the provisions of s. 80P(2)(v) but is admissible under s. 80P(2)(a)(iii) </p><p style="text-align: justify;">(iii) Whether, on the facts and in the circumstances of the case, the Tribunal was justified in deleting interest under s. 217 </p><p style="text-align: justify;">(iv) Whether, on the facts and in the circumstances of the case, the Tribunal was justified in deleting interest under s. 217 </p><p style="text-align: justify;">(v) Whether, on the facts and in the circumstances of the case, Tribunal was justified in directing the Assessing Officer to verify the claim and to allow it the payment of sales-tax, central sales-tax, and entry-tax has been made before filing the returns under s. 139(1) even when the proviso was introduced w.e.f. 1st April, 1988, and not for the earlier years </p><p style="text-align: justify;">(vi) Whether, on the facts and in the circumstances of the case, Tribunal was justified in deleting the penalty amounting to Rs. 1,30,000 on the ground that the foundation of levy of penalty does stand even when the Department has not accepted the same ?'</p><p style="text-align: justify;">2. We have heard learned senior standing counsel for the Revenue. The assessee involved in these case is a co-operative society. The assessment years are during the period 1981 to 1985. Questions 1 and 2 are practically a repetition of the same question. Question No. 4 is a repetition of question No. 3. Therefore, the question No. 4 is deleted. Questions 5 and 6 are renumbered as question Nos. 4 and 5.</p><p style="text-align: justify;">3. The assessee is a co-operative society whose members are cotton growers. The society has been established to help the members in the matter of ginning and pressing cotton and finding market for the processed cotton. The society charges fee for ginning and pressing and also collects a fee for assessing the marketing operations from members. The society contended that it is engaged in marketing of agricultural produce of its members and also processing the agricultural produce of its members and, therefore, it is entitled for deduction of the whole of amount of profit and gains of business attributable to such activities from the assessable income under s. 80P(2) of the Act. The Assessing Officer (AO) negatived this claim on the ground that s. 80P(2)(v) can be invoked only where the processing is done without the aid of power and since processing is done by the assessee with the aid of power, deduction cannot be granted. The appellate authority and the Tribunal took the view that deduction has to be granted under s. 80P(2)(iii) of the Act since the society is engaged in marketing of agricultural produce of its members. It is this decision which has given rise to question Nos. 1 and 2. Question No. 3 is incidental to the answers to question Nos. 1 and 2.</p><p style="text-align: justify;">4. Sec. 43B of the Act states, inter alia, that where sales-tax, central sales-tax and entry-tax is alleged to be paid, deduction is to be given only on actual payment and not on the basis of subsistence of liability. The AO held that payment is not proved and deleted deduction. Tribunal directed him to enquire under the question as to what extent payment has been made and to give deduction to the actual payment made. This decision has led to question No. 4. Question No. 5 is incidental to the answers to other questions.</p><p style="text-align: justify;">5. The order of the Tribunal makes it abundantly clear that deduction is granted in regard to profits from the ginning and pressing operation only because the society is engaged in marketing of agricultural produce of its members. This is under s. 80P(2)(iii) of the Act. The condition that processing shall be done without the aid of the power, seen in sub-cl. (v), is not a condition precedent with reference to sub-cl. (iii). This matter has been clarified by the Supreme Court with reference to the provisions of the Act as they stood prior to 1968 amendment [see Broach Distt. Co-operative Cotton Sales Ginning & Pressing Society Ltd. vs . CIT : [1989]177ITR418(SC) ]. In regard to the controversy arising in these cases, the amendment has not made any practical difference. The question is, therefore, covered by the decision of the Supreme Court and cannot be said to arise.</p><p style="text-align: justify;">6. The Tribunal has not granted deduction to the assessee under s. 43B of the Act in regard to the alleged payments of sales-tax, central sales-tax and entry-tax. The Tribunal only directed the AO to verify whether payment has been made and if satisfied to grant deduction. This part of the decision of the Tribunal cannot be said to have given rise to any question of law. Other questions are incidental to the alleged main questions and do not require independent consideration.</p><p style="text-align: justify;">7. For the reasons indicated above, we hold that no question of law calling for stating the case and making a reference arises for consideration in these cases. Applications are accordingly dismissed.<p style="text-align: justify;"></p><p style="text-align: justify;">', 'observations' => null, 'overruledby' => null, 'prhistory' => '', 'pubs' => '(1996)130CTR(MP)431', 'ratiodecidendi' => '', 'respondent' => 'Co-operative Processing and Marketing Society.', 'sub' => 'Direct Taxation', 'link' => null, 'circuit' => null ) ), 'casename_url' => 'commissioner-income-tax-vs-operative-processing', 'args' => array( (int) 0 => '510422', (int) 1 => 'commissioner-income-tax-vs-operative-processing' ) ) $title_for_layout = 'Commissioner of Income Tax Vs Co Operative Processing and Marketing Society - Citation 510422 - Court Judgment | ' $desc = array( 'Judgement' => array( 'id' => '510422', 'acts' => '', 'appealno' => 'MCC No. 563 of 1995 & other connected cases, 27th September, 1995', 'appellant' => 'Commissioner of Income Tax', 'authreffered' => '', 'casename' => 'Commissioner of Income Tax Vs. Co-operative Processing and Marketing Society.', 'casenote' => ' - CONSTITUTION OF INDIA 1055. Article 141; [A.K. Patnaik, C.J., Dipak Misra, Abhay Gohil, S. Samvatsar, & S.K. Gangele, JJ] Dismissal of SLP arising from decision of High Court Whether binding precedent Decision of Division Bench in Rama and Company v. State of Madhya Pradesh, [2007(II) MPJR 229] overruled by Full Bench of same High Court Prior to delivery of decision of Full Bench order passed in Division Bench decision assailed in SLP before Supreme Court Dismissal of SLP by short reasoned order, though declaration of law, but High Court is bound to follow earlier decisions in field regard being had to concept of precedents as per law laid down by Apex Court and Larger bench decision in Jabalpur Bus Operators Association, reported in [2003(1) MPJR 158]. Court clarifies that Dr. Jaidev Siddha v. Jaiprakash Siddha, 2007(2) MPJR (FB) 361; AIR 2007 MP 269 (FB) is not impliedly overruled in view of dismissal of SLP Articles 226 & 227; [A.K. Patnaik, C.J., Dipak Misra, Abhay Gohil, S. Samvatsar, & S.K. Gangele, JJ] Power to issue writ under Article 226 - [per Majority] The High Courts exercise original jurisdiction under Article 226 of the Constitution and supervisory jurisdiction and the power of superintendence under Article 227 of the Constitution. But, an eloquent and fertile one, a writ of certiorari is issued in exercise of original jurisdiction. Whenever word supervisory has been used in the context of Article 226 it is in contrast with the appellate or revisional jurisdiction. When a writ is issued under Article 226 of the Constitution in respect of Courts or tribunals it is done in exercise of original jurisdiction and the parameters are different than Article 227 of the Constitution of India. It is worth noting that the power under Article 227 was there in a different manner under the Government of India Act. Power of superintendence is distinct from the exercise of power of revisional or supervisory jurisdiction which is a facet of the power of superintendence. The confusion occurs when one applies the principle of equivalence or equates the exercise of supervisory power and power of superintendence with original or supervisory jurisdiction. There is an acceptable nuance between the concept of jurisdiction and exercise of power by certain parameters. Both do come within the fundamental concept of judicial review but the jurisdiction exercised is different when under Article 226 a writ is issued it is issued in exercise of original jurisdiction whether against a tribunal or inferior Courts or administrative authorities. The word superintendence has not been used in Article 226 of the Constitution. It is also evident that the term writs is not referred to in Article 227. On a scrutiny of Article 227 it would be crystal clear that power of superintendence conferred on the High Courts is a power that is restricted to the Courts and tribunal in relation to which it exercises jurisdiction. On the contrary the power conferred on the High Court under Article 226 is not constricted and confined to the Courts and tribunals but it extends to any person or authority. Be it noted, Article 226 as has been engrafted in the Constitution covers entirely a new area, a broader one in a larger spectrum. When the Legislature has used the terms in exercise of original jurisdiction and supervisory jurisdiction it has to be understood that they are used in contradistinction in the constitutional context as has been interpreted by the Apex Court. The words of the Section have to be understood to mean exercise of powers under Article 226 of the Constitution of India which is always original. -- M.P. SAMAJ KE KAMJOR VARGON KE KRISHI BHUMI HADAPNE SAMBANDHI KUCHAKRON SE PARITRAN TATHA MUKTI ADHINIYAM [3/1977]. Section 2: Writ appeal Maintainability from order of single Judge-When permissible Held, Maintainability of a writ appeal from an order of the learned single Judge would depend upon many an aspect and cannot be put into a strait jacket formula. It cannot be stated with mathematical exactitude. It would depend upon the pleadings in the writ petition, nature of the order passed by the single Judge, character and the contour of the order, directions issued, nomenclature given and the jurisdictional prospective in the constitutional context are to be perceived. It cannot be said in a hyper-technical manner that an order passed in a writ petition, if there is assail to the order emerging from the inferior tribunal or subordinate Courts has to be treated all the time for all purposes to be under Article 227 of the Constitution of India. It would depend upon the real nature of the order passed by the learned single Judge. The pleadings also assume immense significance. It would not be an over emphasis to state that an order in a writ petition can fit into the subtle contour of Articles 226 and 227 of the Constitution in a composite manner and they can co-inside, co-exist, overlap or imbricate. In this context it is apt to note that there may be cases where the single Judge may feel disposed or inclined to issue a writ to do full and complete justice because it is to be borne in mind that Article 226 of the Constitution is fundamentally a repository and reservoir of justice based on equity and good conscience. It will depend upon factual matrix of each case. Dr. Jaidev Siddha v. Jaiprakash Siddha, 2007(2) MPJR (FB) 361: AIR 2007 MP 269 (FB) is not impliedly overruled in view of dismissal of SLP preferred against order reported in Rama and Company v. State of Madhya Pradesh [2007 (2) MPJR 229 (DB) (MP)]. - The Tribunal only directed the AO to verify whether payment has been made and if satisfied to grant deduction.', 'caseanalysis' => null, 'casesref' => '', 'citingcases' => '', 'counselplain' => '', 'counseldef' => '', 'court' => 'Madhya Pradesh', 'court_type' => 'HC', 'decidedon' => '1995-09-27', 'deposition' => '', 'favorof' => null, 'findings' => null, 'judge' => '', 'judgement' => 'ORDER<p>BY THE COURT :</p><p>These are applications filed by the Revenue under s. 256(2) of the IT Act, 1961, for stating the case and to make reference of the following common questions :</p><p>'(i) Whether, on the facts and in the circumstances of the case, the Tribunal was justified in holding that ginning and pressing charges received from the members is allowable as an exemption though it was with the aid of power ?</p><p>(ii) Whether, on the facts and in the circumstances of the case, the Tribunal was justified in holding that the claim of the assessee though not admissible within the provisions of s. 80P(2)(v) but is admissible under s. 80P(2)(a)(iii) </p><p>(iii) Whether, on the facts and in the circumstances of the case, the Tribunal was justified in deleting interest under s. 217 </p><p>(iv) Whether, on the facts and in the circumstances of the case, the Tribunal was justified in deleting interest under s. 217 </p><p>(v) Whether, on the facts and in the circumstances of the case, Tribunal was justified in directing the Assessing Officer to verify the claim and to allow it the payment of sales-tax, central sales-tax, and entry-tax has been made before filing the returns under s. 139(1) even when the proviso was introduced w.e.f. 1st April, 1988, and not for the earlier years </p><p>(vi) Whether, on the facts and in the circumstances of the case, Tribunal was justified in deleting the penalty amounting to Rs. 1,30,000 on the ground that the foundation of levy of penalty does stand even when the Department has not accepted the same ?'</p><p>2. We have heard learned senior standing counsel for the Revenue. The assessee involved in these case is a co-operative society. The assessment years are during the period 1981 to 1985. Questions 1 and 2 are practically a repetition of the same question. Question No. 4 is a repetition of question No. 3. Therefore, the question No. 4 is deleted. Questions 5 and 6 are renumbered as question Nos. 4 and 5.</p><p>3. The assessee is a co-operative society whose members are cotton growers. The society has been established to help the members in the matter of ginning and pressing cotton and finding market for the processed cotton. The society charges fee for ginning and pressing and also collects a fee for assessing the marketing operations from members. The society contended that it is engaged in marketing of agricultural produce of its members and also processing the agricultural produce of its members and, therefore, it is entitled for deduction of the whole of amount of profit and gains of business attributable to such activities from the assessable income under s. 80P(2) of the Act. The Assessing Officer (AO) negatived this claim on the ground that s. 80P(2)(v) can be invoked only where the processing is done without the aid of power and since processing is done by the assessee with the aid of power, deduction cannot be granted. The appellate authority and the Tribunal took the view that deduction has to be granted under s. 80P(2)(iii) of the Act since the society is engaged in marketing of agricultural produce of its members. It is this decision which has given rise to question Nos. 1 and 2. Question No. 3 is incidental to the answers to question Nos. 1 and 2.</p><p>4. Sec. 43B of the Act states, inter alia, that where sales-tax, central sales-tax and entry-tax is alleged to be paid, deduction is to be given only on actual payment and not on the basis of subsistence of liability. The AO held that payment is not proved and deleted deduction. Tribunal directed him to enquire under the question as to what extent payment has been made and to give deduction to the actual payment made. This decision has led to question No. 4. Question No. 5 is incidental to the answers to other questions.</p><p>5. The order of the Tribunal makes it abundantly clear that deduction is granted in regard to profits from the ginning and pressing operation only because the society is engaged in marketing of agricultural produce of its members. This is under s. 80P(2)(iii) of the Act. The condition that processing shall be done without the aid of the power, seen in sub-cl. (v), is not a condition precedent with reference to sub-cl. (iii). This matter has been clarified by the Supreme Court with reference to the provisions of the Act as they stood prior to 1968 amendment [see Broach Distt. Co-operative Cotton Sales Ginning & Pressing Society Ltd. vs . CIT : [1989]177ITR418(SC) ]. In regard to the controversy arising in these cases, the amendment has not made any practical difference. The question is, therefore, covered by the decision of the Supreme Court and cannot be said to arise.</p><p>6. The Tribunal has not granted deduction to the assessee under s. 43B of the Act in regard to the alleged payments of sales-tax, central sales-tax and entry-tax. The Tribunal only directed the AO to verify whether payment has been made and if satisfied to grant deduction. This part of the decision of the Tribunal cannot be said to have given rise to any question of law. Other questions are incidental to the alleged main questions and do not require independent consideration.</p><p>7. For the reasons indicated above, we hold that no question of law calling for stating the case and making a reference arises for consideration in these cases. Applications are accordingly dismissed.<p></p><p>', 'observations' => null, 'overruledby' => null, 'prhistory' => '', 'pubs' => '(1996)130CTR(MP)431', 'ratiodecidendi' => '', 'respondent' => 'Co-operative Processing and Marketing Society.', 'sub' => 'Direct Taxation', 'link' => null, 'circuit' => null ) ) $casename_url = 'commissioner-income-tax-vs-operative-processing' $args = array( (int) 0 => '510422', (int) 1 => 'commissioner-income-tax-vs-operative-processing' ) $url = 'https://sooperkanoon.com/case/amp/510422/commissioner-income-tax-vs-operative-processing' $ctype = ' High Court' $content = array( (int) 0 => 'ORDER<p>BY THE COURT :', (int) 1 => '<p>These are applications filed by the Revenue under s. 256(2) of the IT Act, 1961, for stating the case and to make reference of the following common questions :', (int) 2 => '<p>'(i) Whether, on the facts and in the circumstances of the case, the Tribunal was justified in holding that ginning and pressing charges received from the members is allowable as an exemption though it was with the aid of power ?', (int) 3 => '<p>(ii) Whether, on the facts and in the circumstances of the case, the Tribunal was justified in holding that the claim of the assessee though not admissible within the provisions of s. 80P(2)(v) but is admissible under s. 80P(2)(a)(iii) ', (int) 4 => '<p>(iii) Whether, on the facts and in the circumstances of the case, the Tribunal was justified in deleting interest under s. 217 ', (int) 5 => '<p>(iv) Whether, on the facts and in the circumstances of the case, the Tribunal was justified in deleting interest under s. 217 ', (int) 6 => '<p>(v) Whether, on the facts and in the circumstances of the case, Tribunal was justified in directing the Assessing Officer to verify the claim and to allow it the payment of sales-tax, central sales-tax, and entry-tax has been made before filing the returns under s. 139(1) even when the proviso was introduced w.e.f. 1st April, 1988, and not for the earlier years ', (int) 7 => '<p>(vi) Whether, on the facts and in the circumstances of the case, Tribunal was justified in deleting the penalty amounting to Rs. 1,30,000 on the ground that the foundation of levy of penalty does stand even when the Department has not accepted the same ?'', (int) 8 => '<p>2. We have heard learned senior standing counsel for the Revenue. The assessee involved in these case is a co-operative society. The assessment years are during the period 1981 to 1985. Questions 1 and 2 are practically a repetition of the same question. Question No. 4 is a repetition of question No. 3. Therefore, the question No. 4 is deleted. Questions 5 and 6 are renumbered as question Nos. 4 and 5.', (int) 9 => '<p>3. The assessee is a co-operative society whose members are cotton growers. The society has been established to help the members in the matter of ginning and pressing cotton and finding market for the processed cotton. The society charges fee for ginning and pressing and also collects a fee for assessing the marketing operations from members. The society contended that it is engaged in marketing of agricultural produce of its members and also processing the agricultural produce of its members and, therefore, it is entitled for deduction of the whole of amount of profit and gains of business attributable to such activities from the assessable income under s. 80P(2) of the Act. The Assessing Officer (AO) negatived this claim on the ground that s. 80P(2)(v) can be invoked only where the processing is done without the aid of power and since processing is done by the assessee with the aid of power, deduction cannot be granted. The appellate authority and the Tribunal took the view that deduction has to be granted under s. 80P(2)(iii) of the Act since the society is engaged in marketing of agricultural produce of its members. It is this decision which has given rise to question Nos. 1 and 2. Question No. 3 is incidental to the answers to question Nos. 1 and 2.', (int) 10 => '<p>4. Sec. 43B of the Act states, inter alia, that where sales-tax, central sales-tax and entry-tax is alleged to be paid, deduction is to be given only on actual payment and not on the basis of subsistence of liability. The AO held that payment is not proved and deleted deduction. Tribunal directed him to enquire under the question as to what extent payment has been made and to give deduction to the actual payment made. This decision has led to question No. 4. Question No. 5 is incidental to the answers to other questions.', (int) 11 => '<p>5. The order of the Tribunal makes it abundantly clear that deduction is granted in regard to profits from the ginning and pressing operation only because the society is engaged in marketing of agricultural produce of its members. This is under s. 80P(2)(iii) of the Act. The condition that processing shall be done without the aid of the power, seen in sub-cl. (v), is not a condition precedent with reference to sub-cl. (iii). This matter has been clarified by the Supreme Court with reference to the provisions of the Act as they stood prior to 1968 amendment [see Broach Distt. Co-operative Cotton Sales Ginning & Pressing Society Ltd. vs . CIT : [1989]177ITR418(SC) ]. In regard to the controversy arising in these cases, the amendment has not made any practical difference. The question is, therefore, covered by the decision of the Supreme Court and cannot be said to arise.', (int) 12 => '<p>6. The Tribunal has not granted deduction to the assessee under s. 43B of the Act in regard to the alleged payments of sales-tax, central sales-tax and entry-tax. The Tribunal only directed the AO to verify whether payment has been made and if satisfied to grant deduction. This part of the decision of the Tribunal cannot be said to have given rise to any question of law. Other questions are incidental to the alleged main questions and do not require independent consideration.', (int) 13 => '<p>7. For the reasons indicated above, we hold that no question of law calling for stating the case and making a reference arises for consideration in these cases. Applications are accordingly dismissed.<p>', (int) 14 => '<p>' ) $paragraphAfter = (int) 1 $cnt = (int) 15 $i = (int) 10include - APP/View/Case/amp.ctp, line 144 View::_evaluate() - CORE/Cake/View/View.php, line 971 View::_render() - CORE/Cake/View/View.php, line 933 View::render() - CORE/Cake/View/View.php, line 473 Controller::render() - CORE/Cake/Controller/Controller.php, line 963 Dispatcher::_invoke() - CORE/Cake/Routing/Dispatcher.php, line 200 Dispatcher::dispatch() - CORE/Cake/Routing/Dispatcher.php, line 167 [main] - APP/webroot/index.php, line 109
4. Sec. 43B of the Act states, inter alia, that where sales-tax, central sales-tax and entry-tax is alleged to be paid, deduction is to be given only on actual payment and not on the basis of subsistence of liability. The AO held that payment is not proved and deleted deduction. Tribunal directed him to enquire under the question as to what extent payment has been made and to give deduction to the actual payment made. This decision has led to question No. 4. Question No. 5 is incidental to the answers to other questions.
Notice (8): Undefined variable: query [APP/View/Case/amp.ctp, line 144]Code Contextecho $this->Adsense->display('responsive_rect');}echo html_entity_decode($this->Wand->highlight($content[$i], $query));$viewFile = '/home/legalcrystal/app/View/Case/amp.ctp' $dataForView = array( 'title_for_layout' => 'Commissioner of Income Tax Vs Co Operative Processing and Marketing Society - Citation 510422 - Court Judgment | ', 'desc' => array( 'Judgement' => array( 'id' => '510422', 'acts' => '', 'appealno' => 'MCC No. 563 of 1995 & other connected cases, 27th September, 1995', 'appellant' => 'Commissioner of Income Tax', 'authreffered' => '', 'casename' => 'Commissioner of Income Tax Vs. Co-operative Processing and Marketing Society.', 'casenote' => ' - CONSTITUTION OF INDIA 1055. Article 141; [A.K. Patnaik, C.J., Dipak Misra, Abhay Gohil, S. Samvatsar, & S.K. Gangele, JJ] Dismissal of SLP arising from decision of High Court Whether binding precedent Decision of Division Bench in Rama and Company v. State of Madhya Pradesh, [2007(II) MPJR 229] overruled by Full Bench of same High Court Prior to delivery of decision of Full Bench order passed in Division Bench decision assailed in SLP before Supreme Court Dismissal of SLP by short reasoned order, though declaration of law, but High Court is bound to follow earlier decisions in field regard being had to concept of precedents as per law laid down by Apex Court and Larger bench decision in Jabalpur Bus Operators Association, reported in [2003(1) MPJR 158]. Court clarifies that Dr. Jaidev Siddha v. Jaiprakash Siddha, 2007(2) MPJR (FB) 361; AIR 2007 MP 269 (FB) is not impliedly overruled in view of dismissal of SLP Articles 226 & 227; [A.K. Patnaik, C.J., Dipak Misra, Abhay Gohil, S. Samvatsar, & S.K. Gangele, JJ] Power to issue writ under Article 226 - [per Majority] The High Courts exercise original jurisdiction under Article 226 of the Constitution and supervisory jurisdiction and the power of superintendence under Article 227 of the Constitution. But, an eloquent and fertile one, a writ of certiorari is issued in exercise of original jurisdiction. Whenever word supervisory has been used in the context of Article 226 it is in contrast with the appellate or revisional jurisdiction. When a writ is issued under Article 226 of the Constitution in respect of Courts or tribunals it is done in exercise of original jurisdiction and the parameters are different than Article 227 of the Constitution of India. It is worth noting that the power under Article 227 was there in a different manner under the Government of India Act. Power of superintendence is distinct from the exercise of power of revisional or supervisory jurisdiction which is a facet of the power of superintendence. The confusion occurs when one applies the principle of equivalence or equates the exercise of supervisory power and power of superintendence with original or supervisory jurisdiction. There is an acceptable nuance between the concept of jurisdiction and exercise of power by certain parameters. Both do come within the fundamental concept of judicial review but the jurisdiction exercised is different when under Article 226 a writ is issued it is issued in exercise of original jurisdiction whether against a tribunal or inferior Courts or administrative authorities. The word superintendence has not been used in Article 226 of the Constitution. It is also evident that the term writs is not referred to in Article 227. On a scrutiny of Article 227 it would be crystal clear that power of superintendence conferred on the High Courts is a power that is restricted to the Courts and tribunal in relation to which it exercises jurisdiction. On the contrary the power conferred on the High Court under Article 226 is not constricted and confined to the Courts and tribunals but it extends to any person or authority. Be it noted, Article 226 as has been engrafted in the Constitution covers entirely a new area, a broader one in a larger spectrum. When the Legislature has used the terms in exercise of original jurisdiction and supervisory jurisdiction it has to be understood that they are used in contradistinction in the constitutional context as has been interpreted by the Apex Court. The words of the Section have to be understood to mean exercise of powers under Article 226 of the Constitution of India which is always original. -- M.P. SAMAJ KE KAMJOR VARGON KE KRISHI BHUMI HADAPNE SAMBANDHI KUCHAKRON SE PARITRAN TATHA MUKTI ADHINIYAM [3/1977]. Section 2: Writ appeal Maintainability from order of single Judge-When permissible Held, Maintainability of a writ appeal from an order of the learned single Judge would depend upon many an aspect and cannot be put into a strait jacket formula. It cannot be stated with mathematical exactitude. It would depend upon the pleadings in the writ petition, nature of the order passed by the single Judge, character and the contour of the order, directions issued, nomenclature given and the jurisdictional prospective in the constitutional context are to be perceived. It cannot be said in a hyper-technical manner that an order passed in a writ petition, if there is assail to the order emerging from the inferior tribunal or subordinate Courts has to be treated all the time for all purposes to be under Article 227 of the Constitution of India. It would depend upon the real nature of the order passed by the learned single Judge. The pleadings also assume immense significance. It would not be an over emphasis to state that an order in a writ petition can fit into the subtle contour of Articles 226 and 227 of the Constitution in a composite manner and they can co-inside, co-exist, overlap or imbricate. In this context it is apt to note that there may be cases where the single Judge may feel disposed or inclined to issue a writ to do full and complete justice because it is to be borne in mind that Article 226 of the Constitution is fundamentally a repository and reservoir of justice based on equity and good conscience. It will depend upon factual matrix of each case. Dr. Jaidev Siddha v. Jaiprakash Siddha, 2007(2) MPJR (FB) 361: AIR 2007 MP 269 (FB) is not impliedly overruled in view of dismissal of SLP preferred against order reported in Rama and Company v. State of Madhya Pradesh [2007 (2) MPJR 229 (DB) (MP)]. - The Tribunal only directed the AO to verify whether payment has been made and if satisfied to grant deduction.', 'caseanalysis' => null, 'casesref' => '', 'citingcases' => '', 'counselplain' => '', 'counseldef' => '', 'court' => 'Madhya Pradesh', 'court_type' => 'HC', 'decidedon' => '1995-09-27', 'deposition' => '', 'favorof' => null, 'findings' => null, 'judge' => '', 'judgement' => 'ORDER<p style="text-align: justify;">BY THE COURT :</p><p style="text-align: justify;">These are applications filed by the Revenue under s. 256(2) of the IT Act, 1961, for stating the case and to make reference of the following common questions :</p><p style="text-align: justify;">'(i) Whether, on the facts and in the circumstances of the case, the Tribunal was justified in holding that ginning and pressing charges received from the members is allowable as an exemption though it was with the aid of power ?</p><p style="text-align: justify;">(ii) Whether, on the facts and in the circumstances of the case, the Tribunal was justified in holding that the claim of the assessee though not admissible within the provisions of s. 80P(2)(v) but is admissible under s. 80P(2)(a)(iii) </p><p style="text-align: justify;">(iii) Whether, on the facts and in the circumstances of the case, the Tribunal was justified in deleting interest under s. 217 </p><p style="text-align: justify;">(iv) Whether, on the facts and in the circumstances of the case, the Tribunal was justified in deleting interest under s. 217 </p><p style="text-align: justify;">(v) Whether, on the facts and in the circumstances of the case, Tribunal was justified in directing the Assessing Officer to verify the claim and to allow it the payment of sales-tax, central sales-tax, and entry-tax has been made before filing the returns under s. 139(1) even when the proviso was introduced w.e.f. 1st April, 1988, and not for the earlier years </p><p style="text-align: justify;">(vi) Whether, on the facts and in the circumstances of the case, Tribunal was justified in deleting the penalty amounting to Rs. 1,30,000 on the ground that the foundation of levy of penalty does stand even when the Department has not accepted the same ?'</p><p style="text-align: justify;">2. We have heard learned senior standing counsel for the Revenue. The assessee involved in these case is a co-operative society. The assessment years are during the period 1981 to 1985. Questions 1 and 2 are practically a repetition of the same question. Question No. 4 is a repetition of question No. 3. Therefore, the question No. 4 is deleted. Questions 5 and 6 are renumbered as question Nos. 4 and 5.</p><p style="text-align: justify;">3. The assessee is a co-operative society whose members are cotton growers. The society has been established to help the members in the matter of ginning and pressing cotton and finding market for the processed cotton. The society charges fee for ginning and pressing and also collects a fee for assessing the marketing operations from members. The society contended that it is engaged in marketing of agricultural produce of its members and also processing the agricultural produce of its members and, therefore, it is entitled for deduction of the whole of amount of profit and gains of business attributable to such activities from the assessable income under s. 80P(2) of the Act. The Assessing Officer (AO) negatived this claim on the ground that s. 80P(2)(v) can be invoked only where the processing is done without the aid of power and since processing is done by the assessee with the aid of power, deduction cannot be granted. The appellate authority and the Tribunal took the view that deduction has to be granted under s. 80P(2)(iii) of the Act since the society is engaged in marketing of agricultural produce of its members. It is this decision which has given rise to question Nos. 1 and 2. Question No. 3 is incidental to the answers to question Nos. 1 and 2.</p><p style="text-align: justify;">4. Sec. 43B of the Act states, inter alia, that where sales-tax, central sales-tax and entry-tax is alleged to be paid, deduction is to be given only on actual payment and not on the basis of subsistence of liability. The AO held that payment is not proved and deleted deduction. Tribunal directed him to enquire under the question as to what extent payment has been made and to give deduction to the actual payment made. This decision has led to question No. 4. Question No. 5 is incidental to the answers to other questions.</p><p style="text-align: justify;">5. The order of the Tribunal makes it abundantly clear that deduction is granted in regard to profits from the ginning and pressing operation only because the society is engaged in marketing of agricultural produce of its members. This is under s. 80P(2)(iii) of the Act. The condition that processing shall be done without the aid of the power, seen in sub-cl. (v), is not a condition precedent with reference to sub-cl. (iii). This matter has been clarified by the Supreme Court with reference to the provisions of the Act as they stood prior to 1968 amendment [see Broach Distt. Co-operative Cotton Sales Ginning & Pressing Society Ltd. vs . CIT : [1989]177ITR418(SC) ]. In regard to the controversy arising in these cases, the amendment has not made any practical difference. The question is, therefore, covered by the decision of the Supreme Court and cannot be said to arise.</p><p style="text-align: justify;">6. The Tribunal has not granted deduction to the assessee under s. 43B of the Act in regard to the alleged payments of sales-tax, central sales-tax and entry-tax. The Tribunal only directed the AO to verify whether payment has been made and if satisfied to grant deduction. This part of the decision of the Tribunal cannot be said to have given rise to any question of law. Other questions are incidental to the alleged main questions and do not require independent consideration.</p><p style="text-align: justify;">7. For the reasons indicated above, we hold that no question of law calling for stating the case and making a reference arises for consideration in these cases. Applications are accordingly dismissed.<p style="text-align: justify;"></p><p style="text-align: justify;">', 'observations' => null, 'overruledby' => null, 'prhistory' => '', 'pubs' => '(1996)130CTR(MP)431', 'ratiodecidendi' => '', 'respondent' => 'Co-operative Processing and Marketing Society.', 'sub' => 'Direct Taxation', 'link' => null, 'circuit' => null ) ), 'casename_url' => 'commissioner-income-tax-vs-operative-processing', 'args' => array( (int) 0 => '510422', (int) 1 => 'commissioner-income-tax-vs-operative-processing' ) ) $title_for_layout = 'Commissioner of Income Tax Vs Co Operative Processing and Marketing Society - Citation 510422 - Court Judgment | ' $desc = array( 'Judgement' => array( 'id' => '510422', 'acts' => '', 'appealno' => 'MCC No. 563 of 1995 & other connected cases, 27th September, 1995', 'appellant' => 'Commissioner of Income Tax', 'authreffered' => '', 'casename' => 'Commissioner of Income Tax Vs. Co-operative Processing and Marketing Society.', 'casenote' => ' - CONSTITUTION OF INDIA 1055. Article 141; [A.K. Patnaik, C.J., Dipak Misra, Abhay Gohil, S. Samvatsar, & S.K. Gangele, JJ] Dismissal of SLP arising from decision of High Court Whether binding precedent Decision of Division Bench in Rama and Company v. State of Madhya Pradesh, [2007(II) MPJR 229] overruled by Full Bench of same High Court Prior to delivery of decision of Full Bench order passed in Division Bench decision assailed in SLP before Supreme Court Dismissal of SLP by short reasoned order, though declaration of law, but High Court is bound to follow earlier decisions in field regard being had to concept of precedents as per law laid down by Apex Court and Larger bench decision in Jabalpur Bus Operators Association, reported in [2003(1) MPJR 158]. Court clarifies that Dr. Jaidev Siddha v. Jaiprakash Siddha, 2007(2) MPJR (FB) 361; AIR 2007 MP 269 (FB) is not impliedly overruled in view of dismissal of SLP Articles 226 & 227; [A.K. Patnaik, C.J., Dipak Misra, Abhay Gohil, S. Samvatsar, & S.K. Gangele, JJ] Power to issue writ under Article 226 - [per Majority] The High Courts exercise original jurisdiction under Article 226 of the Constitution and supervisory jurisdiction and the power of superintendence under Article 227 of the Constitution. But, an eloquent and fertile one, a writ of certiorari is issued in exercise of original jurisdiction. Whenever word supervisory has been used in the context of Article 226 it is in contrast with the appellate or revisional jurisdiction. When a writ is issued under Article 226 of the Constitution in respect of Courts or tribunals it is done in exercise of original jurisdiction and the parameters are different than Article 227 of the Constitution of India. It is worth noting that the power under Article 227 was there in a different manner under the Government of India Act. Power of superintendence is distinct from the exercise of power of revisional or supervisory jurisdiction which is a facet of the power of superintendence. The confusion occurs when one applies the principle of equivalence or equates the exercise of supervisory power and power of superintendence with original or supervisory jurisdiction. There is an acceptable nuance between the concept of jurisdiction and exercise of power by certain parameters. Both do come within the fundamental concept of judicial review but the jurisdiction exercised is different when under Article 226 a writ is issued it is issued in exercise of original jurisdiction whether against a tribunal or inferior Courts or administrative authorities. The word superintendence has not been used in Article 226 of the Constitution. It is also evident that the term writs is not referred to in Article 227. On a scrutiny of Article 227 it would be crystal clear that power of superintendence conferred on the High Courts is a power that is restricted to the Courts and tribunal in relation to which it exercises jurisdiction. On the contrary the power conferred on the High Court under Article 226 is not constricted and confined to the Courts and tribunals but it extends to any person or authority. Be it noted, Article 226 as has been engrafted in the Constitution covers entirely a new area, a broader one in a larger spectrum. When the Legislature has used the terms in exercise of original jurisdiction and supervisory jurisdiction it has to be understood that they are used in contradistinction in the constitutional context as has been interpreted by the Apex Court. The words of the Section have to be understood to mean exercise of powers under Article 226 of the Constitution of India which is always original. -- M.P. SAMAJ KE KAMJOR VARGON KE KRISHI BHUMI HADAPNE SAMBANDHI KUCHAKRON SE PARITRAN TATHA MUKTI ADHINIYAM [3/1977]. Section 2: Writ appeal Maintainability from order of single Judge-When permissible Held, Maintainability of a writ appeal from an order of the learned single Judge would depend upon many an aspect and cannot be put into a strait jacket formula. It cannot be stated with mathematical exactitude. It would depend upon the pleadings in the writ petition, nature of the order passed by the single Judge, character and the contour of the order, directions issued, nomenclature given and the jurisdictional prospective in the constitutional context are to be perceived. It cannot be said in a hyper-technical manner that an order passed in a writ petition, if there is assail to the order emerging from the inferior tribunal or subordinate Courts has to be treated all the time for all purposes to be under Article 227 of the Constitution of India. It would depend upon the real nature of the order passed by the learned single Judge. The pleadings also assume immense significance. It would not be an over emphasis to state that an order in a writ petition can fit into the subtle contour of Articles 226 and 227 of the Constitution in a composite manner and they can co-inside, co-exist, overlap or imbricate. In this context it is apt to note that there may be cases where the single Judge may feel disposed or inclined to issue a writ to do full and complete justice because it is to be borne in mind that Article 226 of the Constitution is fundamentally a repository and reservoir of justice based on equity and good conscience. It will depend upon factual matrix of each case. Dr. Jaidev Siddha v. Jaiprakash Siddha, 2007(2) MPJR (FB) 361: AIR 2007 MP 269 (FB) is not impliedly overruled in view of dismissal of SLP preferred against order reported in Rama and Company v. State of Madhya Pradesh [2007 (2) MPJR 229 (DB) (MP)]. - The Tribunal only directed the AO to verify whether payment has been made and if satisfied to grant deduction.', 'caseanalysis' => null, 'casesref' => '', 'citingcases' => '', 'counselplain' => '', 'counseldef' => '', 'court' => 'Madhya Pradesh', 'court_type' => 'HC', 'decidedon' => '1995-09-27', 'deposition' => '', 'favorof' => null, 'findings' => null, 'judge' => '', 'judgement' => 'ORDER<p>BY THE COURT :</p><p>These are applications filed by the Revenue under s. 256(2) of the IT Act, 1961, for stating the case and to make reference of the following common questions :</p><p>'(i) Whether, on the facts and in the circumstances of the case, the Tribunal was justified in holding that ginning and pressing charges received from the members is allowable as an exemption though it was with the aid of power ?</p><p>(ii) Whether, on the facts and in the circumstances of the case, the Tribunal was justified in holding that the claim of the assessee though not admissible within the provisions of s. 80P(2)(v) but is admissible under s. 80P(2)(a)(iii) </p><p>(iii) Whether, on the facts and in the circumstances of the case, the Tribunal was justified in deleting interest under s. 217 </p><p>(iv) Whether, on the facts and in the circumstances of the case, the Tribunal was justified in deleting interest under s. 217 </p><p>(v) Whether, on the facts and in the circumstances of the case, Tribunal was justified in directing the Assessing Officer to verify the claim and to allow it the payment of sales-tax, central sales-tax, and entry-tax has been made before filing the returns under s. 139(1) even when the proviso was introduced w.e.f. 1st April, 1988, and not for the earlier years </p><p>(vi) Whether, on the facts and in the circumstances of the case, Tribunal was justified in deleting the penalty amounting to Rs. 1,30,000 on the ground that the foundation of levy of penalty does stand even when the Department has not accepted the same ?'</p><p>2. We have heard learned senior standing counsel for the Revenue. The assessee involved in these case is a co-operative society. The assessment years are during the period 1981 to 1985. Questions 1 and 2 are practically a repetition of the same question. Question No. 4 is a repetition of question No. 3. Therefore, the question No. 4 is deleted. Questions 5 and 6 are renumbered as question Nos. 4 and 5.</p><p>3. The assessee is a co-operative society whose members are cotton growers. The society has been established to help the members in the matter of ginning and pressing cotton and finding market for the processed cotton. The society charges fee for ginning and pressing and also collects a fee for assessing the marketing operations from members. The society contended that it is engaged in marketing of agricultural produce of its members and also processing the agricultural produce of its members and, therefore, it is entitled for deduction of the whole of amount of profit and gains of business attributable to such activities from the assessable income under s. 80P(2) of the Act. The Assessing Officer (AO) negatived this claim on the ground that s. 80P(2)(v) can be invoked only where the processing is done without the aid of power and since processing is done by the assessee with the aid of power, deduction cannot be granted. The appellate authority and the Tribunal took the view that deduction has to be granted under s. 80P(2)(iii) of the Act since the society is engaged in marketing of agricultural produce of its members. It is this decision which has given rise to question Nos. 1 and 2. Question No. 3 is incidental to the answers to question Nos. 1 and 2.</p><p>4. Sec. 43B of the Act states, inter alia, that where sales-tax, central sales-tax and entry-tax is alleged to be paid, deduction is to be given only on actual payment and not on the basis of subsistence of liability. The AO held that payment is not proved and deleted deduction. Tribunal directed him to enquire under the question as to what extent payment has been made and to give deduction to the actual payment made. This decision has led to question No. 4. Question No. 5 is incidental to the answers to other questions.</p><p>5. The order of the Tribunal makes it abundantly clear that deduction is granted in regard to profits from the ginning and pressing operation only because the society is engaged in marketing of agricultural produce of its members. This is under s. 80P(2)(iii) of the Act. The condition that processing shall be done without the aid of the power, seen in sub-cl. (v), is not a condition precedent with reference to sub-cl. (iii). This matter has been clarified by the Supreme Court with reference to the provisions of the Act as they stood prior to 1968 amendment [see Broach Distt. Co-operative Cotton Sales Ginning & Pressing Society Ltd. vs . CIT : [1989]177ITR418(SC) ]. In regard to the controversy arising in these cases, the amendment has not made any practical difference. The question is, therefore, covered by the decision of the Supreme Court and cannot be said to arise.</p><p>6. The Tribunal has not granted deduction to the assessee under s. 43B of the Act in regard to the alleged payments of sales-tax, central sales-tax and entry-tax. The Tribunal only directed the AO to verify whether payment has been made and if satisfied to grant deduction. This part of the decision of the Tribunal cannot be said to have given rise to any question of law. Other questions are incidental to the alleged main questions and do not require independent consideration.</p><p>7. For the reasons indicated above, we hold that no question of law calling for stating the case and making a reference arises for consideration in these cases. Applications are accordingly dismissed.<p></p><p>', 'observations' => null, 'overruledby' => null, 'prhistory' => '', 'pubs' => '(1996)130CTR(MP)431', 'ratiodecidendi' => '', 'respondent' => 'Co-operative Processing and Marketing Society.', 'sub' => 'Direct Taxation', 'link' => null, 'circuit' => null ) ) $casename_url = 'commissioner-income-tax-vs-operative-processing' $args = array( (int) 0 => '510422', (int) 1 => 'commissioner-income-tax-vs-operative-processing' ) $url = 'https://sooperkanoon.com/case/amp/510422/commissioner-income-tax-vs-operative-processing' $ctype = ' High Court' $content = array( (int) 0 => 'ORDER<p>BY THE COURT :', (int) 1 => '<p>These are applications filed by the Revenue under s. 256(2) of the IT Act, 1961, for stating the case and to make reference of the following common questions :', (int) 2 => '<p>'(i) Whether, on the facts and in the circumstances of the case, the Tribunal was justified in holding that ginning and pressing charges received from the members is allowable as an exemption though it was with the aid of power ?', (int) 3 => '<p>(ii) Whether, on the facts and in the circumstances of the case, the Tribunal was justified in holding that the claim of the assessee though not admissible within the provisions of s. 80P(2)(v) but is admissible under s. 80P(2)(a)(iii) ', (int) 4 => '<p>(iii) Whether, on the facts and in the circumstances of the case, the Tribunal was justified in deleting interest under s. 217 ', (int) 5 => '<p>(iv) Whether, on the facts and in the circumstances of the case, the Tribunal was justified in deleting interest under s. 217 ', (int) 6 => '<p>(v) Whether, on the facts and in the circumstances of the case, Tribunal was justified in directing the Assessing Officer to verify the claim and to allow it the payment of sales-tax, central sales-tax, and entry-tax has been made before filing the returns under s. 139(1) even when the proviso was introduced w.e.f. 1st April, 1988, and not for the earlier years ', (int) 7 => '<p>(vi) Whether, on the facts and in the circumstances of the case, Tribunal was justified in deleting the penalty amounting to Rs. 1,30,000 on the ground that the foundation of levy of penalty does stand even when the Department has not accepted the same ?'', (int) 8 => '<p>2. We have heard learned senior standing counsel for the Revenue. The assessee involved in these case is a co-operative society. The assessment years are during the period 1981 to 1985. Questions 1 and 2 are practically a repetition of the same question. Question No. 4 is a repetition of question No. 3. Therefore, the question No. 4 is deleted. Questions 5 and 6 are renumbered as question Nos. 4 and 5.', (int) 9 => '<p>3. The assessee is a co-operative society whose members are cotton growers. The society has been established to help the members in the matter of ginning and pressing cotton and finding market for the processed cotton. The society charges fee for ginning and pressing and also collects a fee for assessing the marketing operations from members. The society contended that it is engaged in marketing of agricultural produce of its members and also processing the agricultural produce of its members and, therefore, it is entitled for deduction of the whole of amount of profit and gains of business attributable to such activities from the assessable income under s. 80P(2) of the Act. The Assessing Officer (AO) negatived this claim on the ground that s. 80P(2)(v) can be invoked only where the processing is done without the aid of power and since processing is done by the assessee with the aid of power, deduction cannot be granted. The appellate authority and the Tribunal took the view that deduction has to be granted under s. 80P(2)(iii) of the Act since the society is engaged in marketing of agricultural produce of its members. It is this decision which has given rise to question Nos. 1 and 2. Question No. 3 is incidental to the answers to question Nos. 1 and 2.', (int) 10 => '<p>4. Sec. 43B of the Act states, inter alia, that where sales-tax, central sales-tax and entry-tax is alleged to be paid, deduction is to be given only on actual payment and not on the basis of subsistence of liability. The AO held that payment is not proved and deleted deduction. Tribunal directed him to enquire under the question as to what extent payment has been made and to give deduction to the actual payment made. This decision has led to question No. 4. Question No. 5 is incidental to the answers to other questions.', (int) 11 => '<p>5. The order of the Tribunal makes it abundantly clear that deduction is granted in regard to profits from the ginning and pressing operation only because the society is engaged in marketing of agricultural produce of its members. This is under s. 80P(2)(iii) of the Act. The condition that processing shall be done without the aid of the power, seen in sub-cl. (v), is not a condition precedent with reference to sub-cl. (iii). This matter has been clarified by the Supreme Court with reference to the provisions of the Act as they stood prior to 1968 amendment [see Broach Distt. Co-operative Cotton Sales Ginning & Pressing Society Ltd. vs . CIT : [1989]177ITR418(SC) ]. In regard to the controversy arising in these cases, the amendment has not made any practical difference. The question is, therefore, covered by the decision of the Supreme Court and cannot be said to arise.', (int) 12 => '<p>6. The Tribunal has not granted deduction to the assessee under s. 43B of the Act in regard to the alleged payments of sales-tax, central sales-tax and entry-tax. The Tribunal only directed the AO to verify whether payment has been made and if satisfied to grant deduction. This part of the decision of the Tribunal cannot be said to have given rise to any question of law. Other questions are incidental to the alleged main questions and do not require independent consideration.', (int) 13 => '<p>7. For the reasons indicated above, we hold that no question of law calling for stating the case and making a reference arises for consideration in these cases. Applications are accordingly dismissed.<p>', (int) 14 => '<p>' ) $paragraphAfter = (int) 1 $cnt = (int) 15 $i = (int) 11include - APP/View/Case/amp.ctp, line 144 View::_evaluate() - CORE/Cake/View/View.php, line 971 View::_render() - CORE/Cake/View/View.php, line 933 View::render() - CORE/Cake/View/View.php, line 473 Controller::render() - CORE/Cake/Controller/Controller.php, line 963 Dispatcher::_invoke() - CORE/Cake/Routing/Dispatcher.php, line 200 Dispatcher::dispatch() - CORE/Cake/Routing/Dispatcher.php, line 167 [main] - APP/webroot/index.php, line 109
5. The order of the Tribunal makes it abundantly clear that deduction is granted in regard to profits from the ginning and pressing operation only because the society is engaged in marketing of agricultural produce of its members. This is under s. 80P(2)(iii) of the Act. The condition that processing shall be done without the aid of the power, seen in sub-cl. (v), is not a condition precedent with reference to sub-cl. (iii). This matter has been clarified by the Supreme Court with reference to the provisions of the Act as they stood prior to 1968 amendment [see Broach Distt. Co-operative Cotton Sales Ginning & Pressing Society Ltd. vs . CIT : [1989]177ITR418(SC) ]. In regard to the controversy arising in these cases, the amendment has not made any practical difference. The question is, therefore, covered by the decision of the Supreme Court and cannot be said to arise.
Notice (8): Undefined variable: query [APP/View/Case/amp.ctp, line 144]Code Contextecho $this->Adsense->display('responsive_rect');}echo html_entity_decode($this->Wand->highlight($content[$i], $query));$viewFile = '/home/legalcrystal/app/View/Case/amp.ctp' $dataForView = array( 'title_for_layout' => 'Commissioner of Income Tax Vs Co Operative Processing and Marketing Society - Citation 510422 - Court Judgment | ', 'desc' => array( 'Judgement' => array( 'id' => '510422', 'acts' => '', 'appealno' => 'MCC No. 563 of 1995 & other connected cases, 27th September, 1995', 'appellant' => 'Commissioner of Income Tax', 'authreffered' => '', 'casename' => 'Commissioner of Income Tax Vs. Co-operative Processing and Marketing Society.', 'casenote' => ' - CONSTITUTION OF INDIA 1055. Article 141; [A.K. Patnaik, C.J., Dipak Misra, Abhay Gohil, S. Samvatsar, & S.K. Gangele, JJ] Dismissal of SLP arising from decision of High Court Whether binding precedent Decision of Division Bench in Rama and Company v. State of Madhya Pradesh, [2007(II) MPJR 229] overruled by Full Bench of same High Court Prior to delivery of decision of Full Bench order passed in Division Bench decision assailed in SLP before Supreme Court Dismissal of SLP by short reasoned order, though declaration of law, but High Court is bound to follow earlier decisions in field regard being had to concept of precedents as per law laid down by Apex Court and Larger bench decision in Jabalpur Bus Operators Association, reported in [2003(1) MPJR 158]. Court clarifies that Dr. Jaidev Siddha v. Jaiprakash Siddha, 2007(2) MPJR (FB) 361; AIR 2007 MP 269 (FB) is not impliedly overruled in view of dismissal of SLP Articles 226 & 227; [A.K. Patnaik, C.J., Dipak Misra, Abhay Gohil, S. Samvatsar, & S.K. Gangele, JJ] Power to issue writ under Article 226 - [per Majority] The High Courts exercise original jurisdiction under Article 226 of the Constitution and supervisory jurisdiction and the power of superintendence under Article 227 of the Constitution. But, an eloquent and fertile one, a writ of certiorari is issued in exercise of original jurisdiction. Whenever word supervisory has been used in the context of Article 226 it is in contrast with the appellate or revisional jurisdiction. When a writ is issued under Article 226 of the Constitution in respect of Courts or tribunals it is done in exercise of original jurisdiction and the parameters are different than Article 227 of the Constitution of India. It is worth noting that the power under Article 227 was there in a different manner under the Government of India Act. Power of superintendence is distinct from the exercise of power of revisional or supervisory jurisdiction which is a facet of the power of superintendence. The confusion occurs when one applies the principle of equivalence or equates the exercise of supervisory power and power of superintendence with original or supervisory jurisdiction. There is an acceptable nuance between the concept of jurisdiction and exercise of power by certain parameters. Both do come within the fundamental concept of judicial review but the jurisdiction exercised is different when under Article 226 a writ is issued it is issued in exercise of original jurisdiction whether against a tribunal or inferior Courts or administrative authorities. The word superintendence has not been used in Article 226 of the Constitution. It is also evident that the term writs is not referred to in Article 227. On a scrutiny of Article 227 it would be crystal clear that power of superintendence conferred on the High Courts is a power that is restricted to the Courts and tribunal in relation to which it exercises jurisdiction. On the contrary the power conferred on the High Court under Article 226 is not constricted and confined to the Courts and tribunals but it extends to any person or authority. Be it noted, Article 226 as has been engrafted in the Constitution covers entirely a new area, a broader one in a larger spectrum. When the Legislature has used the terms in exercise of original jurisdiction and supervisory jurisdiction it has to be understood that they are used in contradistinction in the constitutional context as has been interpreted by the Apex Court. The words of the Section have to be understood to mean exercise of powers under Article 226 of the Constitution of India which is always original. -- M.P. SAMAJ KE KAMJOR VARGON KE KRISHI BHUMI HADAPNE SAMBANDHI KUCHAKRON SE PARITRAN TATHA MUKTI ADHINIYAM [3/1977]. Section 2: Writ appeal Maintainability from order of single Judge-When permissible Held, Maintainability of a writ appeal from an order of the learned single Judge would depend upon many an aspect and cannot be put into a strait jacket formula. It cannot be stated with mathematical exactitude. It would depend upon the pleadings in the writ petition, nature of the order passed by the single Judge, character and the contour of the order, directions issued, nomenclature given and the jurisdictional prospective in the constitutional context are to be perceived. It cannot be said in a hyper-technical manner that an order passed in a writ petition, if there is assail to the order emerging from the inferior tribunal or subordinate Courts has to be treated all the time for all purposes to be under Article 227 of the Constitution of India. It would depend upon the real nature of the order passed by the learned single Judge. The pleadings also assume immense significance. It would not be an over emphasis to state that an order in a writ petition can fit into the subtle contour of Articles 226 and 227 of the Constitution in a composite manner and they can co-inside, co-exist, overlap or imbricate. In this context it is apt to note that there may be cases where the single Judge may feel disposed or inclined to issue a writ to do full and complete justice because it is to be borne in mind that Article 226 of the Constitution is fundamentally a repository and reservoir of justice based on equity and good conscience. It will depend upon factual matrix of each case. Dr. Jaidev Siddha v. Jaiprakash Siddha, 2007(2) MPJR (FB) 361: AIR 2007 MP 269 (FB) is not impliedly overruled in view of dismissal of SLP preferred against order reported in Rama and Company v. State of Madhya Pradesh [2007 (2) MPJR 229 (DB) (MP)]. - The Tribunal only directed the AO to verify whether payment has been made and if satisfied to grant deduction.', 'caseanalysis' => null, 'casesref' => '', 'citingcases' => '', 'counselplain' => '', 'counseldef' => '', 'court' => 'Madhya Pradesh', 'court_type' => 'HC', 'decidedon' => '1995-09-27', 'deposition' => '', 'favorof' => null, 'findings' => null, 'judge' => '', 'judgement' => 'ORDER<p style="text-align: justify;">BY THE COURT :</p><p style="text-align: justify;">These are applications filed by the Revenue under s. 256(2) of the IT Act, 1961, for stating the case and to make reference of the following common questions :</p><p style="text-align: justify;">'(i) Whether, on the facts and in the circumstances of the case, the Tribunal was justified in holding that ginning and pressing charges received from the members is allowable as an exemption though it was with the aid of power ?</p><p style="text-align: justify;">(ii) Whether, on the facts and in the circumstances of the case, the Tribunal was justified in holding that the claim of the assessee though not admissible within the provisions of s. 80P(2)(v) but is admissible under s. 80P(2)(a)(iii) </p><p style="text-align: justify;">(iii) Whether, on the facts and in the circumstances of the case, the Tribunal was justified in deleting interest under s. 217 </p><p style="text-align: justify;">(iv) Whether, on the facts and in the circumstances of the case, the Tribunal was justified in deleting interest under s. 217 </p><p style="text-align: justify;">(v) Whether, on the facts and in the circumstances of the case, Tribunal was justified in directing the Assessing Officer to verify the claim and to allow it the payment of sales-tax, central sales-tax, and entry-tax has been made before filing the returns under s. 139(1) even when the proviso was introduced w.e.f. 1st April, 1988, and not for the earlier years </p><p style="text-align: justify;">(vi) Whether, on the facts and in the circumstances of the case, Tribunal was justified in deleting the penalty amounting to Rs. 1,30,000 on the ground that the foundation of levy of penalty does stand even when the Department has not accepted the same ?'</p><p style="text-align: justify;">2. We have heard learned senior standing counsel for the Revenue. The assessee involved in these case is a co-operative society. The assessment years are during the period 1981 to 1985. Questions 1 and 2 are practically a repetition of the same question. Question No. 4 is a repetition of question No. 3. Therefore, the question No. 4 is deleted. Questions 5 and 6 are renumbered as question Nos. 4 and 5.</p><p style="text-align: justify;">3. The assessee is a co-operative society whose members are cotton growers. The society has been established to help the members in the matter of ginning and pressing cotton and finding market for the processed cotton. The society charges fee for ginning and pressing and also collects a fee for assessing the marketing operations from members. The society contended that it is engaged in marketing of agricultural produce of its members and also processing the agricultural produce of its members and, therefore, it is entitled for deduction of the whole of amount of profit and gains of business attributable to such activities from the assessable income under s. 80P(2) of the Act. The Assessing Officer (AO) negatived this claim on the ground that s. 80P(2)(v) can be invoked only where the processing is done without the aid of power and since processing is done by the assessee with the aid of power, deduction cannot be granted. The appellate authority and the Tribunal took the view that deduction has to be granted under s. 80P(2)(iii) of the Act since the society is engaged in marketing of agricultural produce of its members. It is this decision which has given rise to question Nos. 1 and 2. Question No. 3 is incidental to the answers to question Nos. 1 and 2.</p><p style="text-align: justify;">4. Sec. 43B of the Act states, inter alia, that where sales-tax, central sales-tax and entry-tax is alleged to be paid, deduction is to be given only on actual payment and not on the basis of subsistence of liability. The AO held that payment is not proved and deleted deduction. Tribunal directed him to enquire under the question as to what extent payment has been made and to give deduction to the actual payment made. This decision has led to question No. 4. Question No. 5 is incidental to the answers to other questions.</p><p style="text-align: justify;">5. The order of the Tribunal makes it abundantly clear that deduction is granted in regard to profits from the ginning and pressing operation only because the society is engaged in marketing of agricultural produce of its members. This is under s. 80P(2)(iii) of the Act. The condition that processing shall be done without the aid of the power, seen in sub-cl. (v), is not a condition precedent with reference to sub-cl. (iii). This matter has been clarified by the Supreme Court with reference to the provisions of the Act as they stood prior to 1968 amendment [see Broach Distt. Co-operative Cotton Sales Ginning & Pressing Society Ltd. vs . CIT : [1989]177ITR418(SC) ]. In regard to the controversy arising in these cases, the amendment has not made any practical difference. The question is, therefore, covered by the decision of the Supreme Court and cannot be said to arise.</p><p style="text-align: justify;">6. The Tribunal has not granted deduction to the assessee under s. 43B of the Act in regard to the alleged payments of sales-tax, central sales-tax and entry-tax. The Tribunal only directed the AO to verify whether payment has been made and if satisfied to grant deduction. This part of the decision of the Tribunal cannot be said to have given rise to any question of law. Other questions are incidental to the alleged main questions and do not require independent consideration.</p><p style="text-align: justify;">7. For the reasons indicated above, we hold that no question of law calling for stating the case and making a reference arises for consideration in these cases. Applications are accordingly dismissed.<p style="text-align: justify;"></p><p style="text-align: justify;">', 'observations' => null, 'overruledby' => null, 'prhistory' => '', 'pubs' => '(1996)130CTR(MP)431', 'ratiodecidendi' => '', 'respondent' => 'Co-operative Processing and Marketing Society.', 'sub' => 'Direct Taxation', 'link' => null, 'circuit' => null ) ), 'casename_url' => 'commissioner-income-tax-vs-operative-processing', 'args' => array( (int) 0 => '510422', (int) 1 => 'commissioner-income-tax-vs-operative-processing' ) ) $title_for_layout = 'Commissioner of Income Tax Vs Co Operative Processing and Marketing Society - Citation 510422 - Court Judgment | ' $desc = array( 'Judgement' => array( 'id' => '510422', 'acts' => '', 'appealno' => 'MCC No. 563 of 1995 & other connected cases, 27th September, 1995', 'appellant' => 'Commissioner of Income Tax', 'authreffered' => '', 'casename' => 'Commissioner of Income Tax Vs. Co-operative Processing and Marketing Society.', 'casenote' => ' - CONSTITUTION OF INDIA 1055. Article 141; [A.K. Patnaik, C.J., Dipak Misra, Abhay Gohil, S. Samvatsar, & S.K. Gangele, JJ] Dismissal of SLP arising from decision of High Court Whether binding precedent Decision of Division Bench in Rama and Company v. State of Madhya Pradesh, [2007(II) MPJR 229] overruled by Full Bench of same High Court Prior to delivery of decision of Full Bench order passed in Division Bench decision assailed in SLP before Supreme Court Dismissal of SLP by short reasoned order, though declaration of law, but High Court is bound to follow earlier decisions in field regard being had to concept of precedents as per law laid down by Apex Court and Larger bench decision in Jabalpur Bus Operators Association, reported in [2003(1) MPJR 158]. Court clarifies that Dr. Jaidev Siddha v. Jaiprakash Siddha, 2007(2) MPJR (FB) 361; AIR 2007 MP 269 (FB) is not impliedly overruled in view of dismissal of SLP Articles 226 & 227; [A.K. Patnaik, C.J., Dipak Misra, Abhay Gohil, S. Samvatsar, & S.K. Gangele, JJ] Power to issue writ under Article 226 - [per Majority] The High Courts exercise original jurisdiction under Article 226 of the Constitution and supervisory jurisdiction and the power of superintendence under Article 227 of the Constitution. But, an eloquent and fertile one, a writ of certiorari is issued in exercise of original jurisdiction. Whenever word supervisory has been used in the context of Article 226 it is in contrast with the appellate or revisional jurisdiction. When a writ is issued under Article 226 of the Constitution in respect of Courts or tribunals it is done in exercise of original jurisdiction and the parameters are different than Article 227 of the Constitution of India. It is worth noting that the power under Article 227 was there in a different manner under the Government of India Act. Power of superintendence is distinct from the exercise of power of revisional or supervisory jurisdiction which is a facet of the power of superintendence. The confusion occurs when one applies the principle of equivalence or equates the exercise of supervisory power and power of superintendence with original or supervisory jurisdiction. There is an acceptable nuance between the concept of jurisdiction and exercise of power by certain parameters. Both do come within the fundamental concept of judicial review but the jurisdiction exercised is different when under Article 226 a writ is issued it is issued in exercise of original jurisdiction whether against a tribunal or inferior Courts or administrative authorities. The word superintendence has not been used in Article 226 of the Constitution. It is also evident that the term writs is not referred to in Article 227. On a scrutiny of Article 227 it would be crystal clear that power of superintendence conferred on the High Courts is a power that is restricted to the Courts and tribunal in relation to which it exercises jurisdiction. On the contrary the power conferred on the High Court under Article 226 is not constricted and confined to the Courts and tribunals but it extends to any person or authority. Be it noted, Article 226 as has been engrafted in the Constitution covers entirely a new area, a broader one in a larger spectrum. When the Legislature has used the terms in exercise of original jurisdiction and supervisory jurisdiction it has to be understood that they are used in contradistinction in the constitutional context as has been interpreted by the Apex Court. The words of the Section have to be understood to mean exercise of powers under Article 226 of the Constitution of India which is always original. -- M.P. SAMAJ KE KAMJOR VARGON KE KRISHI BHUMI HADAPNE SAMBANDHI KUCHAKRON SE PARITRAN TATHA MUKTI ADHINIYAM [3/1977]. Section 2: Writ appeal Maintainability from order of single Judge-When permissible Held, Maintainability of a writ appeal from an order of the learned single Judge would depend upon many an aspect and cannot be put into a strait jacket formula. It cannot be stated with mathematical exactitude. It would depend upon the pleadings in the writ petition, nature of the order passed by the single Judge, character and the contour of the order, directions issued, nomenclature given and the jurisdictional prospective in the constitutional context are to be perceived. It cannot be said in a hyper-technical manner that an order passed in a writ petition, if there is assail to the order emerging from the inferior tribunal or subordinate Courts has to be treated all the time for all purposes to be under Article 227 of the Constitution of India. It would depend upon the real nature of the order passed by the learned single Judge. The pleadings also assume immense significance. It would not be an over emphasis to state that an order in a writ petition can fit into the subtle contour of Articles 226 and 227 of the Constitution in a composite manner and they can co-inside, co-exist, overlap or imbricate. In this context it is apt to note that there may be cases where the single Judge may feel disposed or inclined to issue a writ to do full and complete justice because it is to be borne in mind that Article 226 of the Constitution is fundamentally a repository and reservoir of justice based on equity and good conscience. It will depend upon factual matrix of each case. Dr. Jaidev Siddha v. Jaiprakash Siddha, 2007(2) MPJR (FB) 361: AIR 2007 MP 269 (FB) is not impliedly overruled in view of dismissal of SLP preferred against order reported in Rama and Company v. State of Madhya Pradesh [2007 (2) MPJR 229 (DB) (MP)]. - The Tribunal only directed the AO to verify whether payment has been made and if satisfied to grant deduction.', 'caseanalysis' => null, 'casesref' => '', 'citingcases' => '', 'counselplain' => '', 'counseldef' => '', 'court' => 'Madhya Pradesh', 'court_type' => 'HC', 'decidedon' => '1995-09-27', 'deposition' => '', 'favorof' => null, 'findings' => null, 'judge' => '', 'judgement' => 'ORDER<p>BY THE COURT :</p><p>These are applications filed by the Revenue under s. 256(2) of the IT Act, 1961, for stating the case and to make reference of the following common questions :</p><p>'(i) Whether, on the facts and in the circumstances of the case, the Tribunal was justified in holding that ginning and pressing charges received from the members is allowable as an exemption though it was with the aid of power ?</p><p>(ii) Whether, on the facts and in the circumstances of the case, the Tribunal was justified in holding that the claim of the assessee though not admissible within the provisions of s. 80P(2)(v) but is admissible under s. 80P(2)(a)(iii) </p><p>(iii) Whether, on the facts and in the circumstances of the case, the Tribunal was justified in deleting interest under s. 217 </p><p>(iv) Whether, on the facts and in the circumstances of the case, the Tribunal was justified in deleting interest under s. 217 </p><p>(v) Whether, on the facts and in the circumstances of the case, Tribunal was justified in directing the Assessing Officer to verify the claim and to allow it the payment of sales-tax, central sales-tax, and entry-tax has been made before filing the returns under s. 139(1) even when the proviso was introduced w.e.f. 1st April, 1988, and not for the earlier years </p><p>(vi) Whether, on the facts and in the circumstances of the case, Tribunal was justified in deleting the penalty amounting to Rs. 1,30,000 on the ground that the foundation of levy of penalty does stand even when the Department has not accepted the same ?'</p><p>2. We have heard learned senior standing counsel for the Revenue. The assessee involved in these case is a co-operative society. The assessment years are during the period 1981 to 1985. Questions 1 and 2 are practically a repetition of the same question. Question No. 4 is a repetition of question No. 3. Therefore, the question No. 4 is deleted. Questions 5 and 6 are renumbered as question Nos. 4 and 5.</p><p>3. The assessee is a co-operative society whose members are cotton growers. The society has been established to help the members in the matter of ginning and pressing cotton and finding market for the processed cotton. The society charges fee for ginning and pressing and also collects a fee for assessing the marketing operations from members. The society contended that it is engaged in marketing of agricultural produce of its members and also processing the agricultural produce of its members and, therefore, it is entitled for deduction of the whole of amount of profit and gains of business attributable to such activities from the assessable income under s. 80P(2) of the Act. The Assessing Officer (AO) negatived this claim on the ground that s. 80P(2)(v) can be invoked only where the processing is done without the aid of power and since processing is done by the assessee with the aid of power, deduction cannot be granted. The appellate authority and the Tribunal took the view that deduction has to be granted under s. 80P(2)(iii) of the Act since the society is engaged in marketing of agricultural produce of its members. It is this decision which has given rise to question Nos. 1 and 2. Question No. 3 is incidental to the answers to question Nos. 1 and 2.</p><p>4. Sec. 43B of the Act states, inter alia, that where sales-tax, central sales-tax and entry-tax is alleged to be paid, deduction is to be given only on actual payment and not on the basis of subsistence of liability. The AO held that payment is not proved and deleted deduction. Tribunal directed him to enquire under the question as to what extent payment has been made and to give deduction to the actual payment made. This decision has led to question No. 4. Question No. 5 is incidental to the answers to other questions.</p><p>5. The order of the Tribunal makes it abundantly clear that deduction is granted in regard to profits from the ginning and pressing operation only because the society is engaged in marketing of agricultural produce of its members. This is under s. 80P(2)(iii) of the Act. The condition that processing shall be done without the aid of the power, seen in sub-cl. (v), is not a condition precedent with reference to sub-cl. (iii). This matter has been clarified by the Supreme Court with reference to the provisions of the Act as they stood prior to 1968 amendment [see Broach Distt. Co-operative Cotton Sales Ginning & Pressing Society Ltd. vs . CIT : [1989]177ITR418(SC) ]. In regard to the controversy arising in these cases, the amendment has not made any practical difference. The question is, therefore, covered by the decision of the Supreme Court and cannot be said to arise.</p><p>6. The Tribunal has not granted deduction to the assessee under s. 43B of the Act in regard to the alleged payments of sales-tax, central sales-tax and entry-tax. The Tribunal only directed the AO to verify whether payment has been made and if satisfied to grant deduction. This part of the decision of the Tribunal cannot be said to have given rise to any question of law. Other questions are incidental to the alleged main questions and do not require independent consideration.</p><p>7. For the reasons indicated above, we hold that no question of law calling for stating the case and making a reference arises for consideration in these cases. Applications are accordingly dismissed.<p></p><p>', 'observations' => null, 'overruledby' => null, 'prhistory' => '', 'pubs' => '(1996)130CTR(MP)431', 'ratiodecidendi' => '', 'respondent' => 'Co-operative Processing and Marketing Society.', 'sub' => 'Direct Taxation', 'link' => null, 'circuit' => null ) ) $casename_url = 'commissioner-income-tax-vs-operative-processing' $args = array( (int) 0 => '510422', (int) 1 => 'commissioner-income-tax-vs-operative-processing' ) $url = 'https://sooperkanoon.com/case/amp/510422/commissioner-income-tax-vs-operative-processing' $ctype = ' High Court' $content = array( (int) 0 => 'ORDER<p>BY THE COURT :', (int) 1 => '<p>These are applications filed by the Revenue under s. 256(2) of the IT Act, 1961, for stating the case and to make reference of the following common questions :', (int) 2 => '<p>'(i) Whether, on the facts and in the circumstances of the case, the Tribunal was justified in holding that ginning and pressing charges received from the members is allowable as an exemption though it was with the aid of power ?', (int) 3 => '<p>(ii) Whether, on the facts and in the circumstances of the case, the Tribunal was justified in holding that the claim of the assessee though not admissible within the provisions of s. 80P(2)(v) but is admissible under s. 80P(2)(a)(iii) ', (int) 4 => '<p>(iii) Whether, on the facts and in the circumstances of the case, the Tribunal was justified in deleting interest under s. 217 ', (int) 5 => '<p>(iv) Whether, on the facts and in the circumstances of the case, the Tribunal was justified in deleting interest under s. 217 ', (int) 6 => '<p>(v) Whether, on the facts and in the circumstances of the case, Tribunal was justified in directing the Assessing Officer to verify the claim and to allow it the payment of sales-tax, central sales-tax, and entry-tax has been made before filing the returns under s. 139(1) even when the proviso was introduced w.e.f. 1st April, 1988, and not for the earlier years ', (int) 7 => '<p>(vi) Whether, on the facts and in the circumstances of the case, Tribunal was justified in deleting the penalty amounting to Rs. 1,30,000 on the ground that the foundation of levy of penalty does stand even when the Department has not accepted the same ?'', (int) 8 => '<p>2. We have heard learned senior standing counsel for the Revenue. The assessee involved in these case is a co-operative society. The assessment years are during the period 1981 to 1985. Questions 1 and 2 are practically a repetition of the same question. Question No. 4 is a repetition of question No. 3. Therefore, the question No. 4 is deleted. Questions 5 and 6 are renumbered as question Nos. 4 and 5.', (int) 9 => '<p>3. The assessee is a co-operative society whose members are cotton growers. The society has been established to help the members in the matter of ginning and pressing cotton and finding market for the processed cotton. The society charges fee for ginning and pressing and also collects a fee for assessing the marketing operations from members. The society contended that it is engaged in marketing of agricultural produce of its members and also processing the agricultural produce of its members and, therefore, it is entitled for deduction of the whole of amount of profit and gains of business attributable to such activities from the assessable income under s. 80P(2) of the Act. The Assessing Officer (AO) negatived this claim on the ground that s. 80P(2)(v) can be invoked only where the processing is done without the aid of power and since processing is done by the assessee with the aid of power, deduction cannot be granted. The appellate authority and the Tribunal took the view that deduction has to be granted under s. 80P(2)(iii) of the Act since the society is engaged in marketing of agricultural produce of its members. It is this decision which has given rise to question Nos. 1 and 2. Question No. 3 is incidental to the answers to question Nos. 1 and 2.', (int) 10 => '<p>4. Sec. 43B of the Act states, inter alia, that where sales-tax, central sales-tax and entry-tax is alleged to be paid, deduction is to be given only on actual payment and not on the basis of subsistence of liability. The AO held that payment is not proved and deleted deduction. Tribunal directed him to enquire under the question as to what extent payment has been made and to give deduction to the actual payment made. This decision has led to question No. 4. Question No. 5 is incidental to the answers to other questions.', (int) 11 => '<p>5. The order of the Tribunal makes it abundantly clear that deduction is granted in regard to profits from the ginning and pressing operation only because the society is engaged in marketing of agricultural produce of its members. This is under s. 80P(2)(iii) of the Act. The condition that processing shall be done without the aid of the power, seen in sub-cl. (v), is not a condition precedent with reference to sub-cl. (iii). This matter has been clarified by the Supreme Court with reference to the provisions of the Act as they stood prior to 1968 amendment [see Broach Distt. Co-operative Cotton Sales Ginning & Pressing Society Ltd. vs . CIT : [1989]177ITR418(SC) ]. In regard to the controversy arising in these cases, the amendment has not made any practical difference. The question is, therefore, covered by the decision of the Supreme Court and cannot be said to arise.', (int) 12 => '<p>6. The Tribunal has not granted deduction to the assessee under s. 43B of the Act in regard to the alleged payments of sales-tax, central sales-tax and entry-tax. The Tribunal only directed the AO to verify whether payment has been made and if satisfied to grant deduction. This part of the decision of the Tribunal cannot be said to have given rise to any question of law. Other questions are incidental to the alleged main questions and do not require independent consideration.', (int) 13 => '<p>7. For the reasons indicated above, we hold that no question of law calling for stating the case and making a reference arises for consideration in these cases. Applications are accordingly dismissed.<p>', (int) 14 => '<p>' ) $paragraphAfter = (int) 1 $cnt = (int) 15 $i = (int) 12include - APP/View/Case/amp.ctp, line 144 View::_evaluate() - CORE/Cake/View/View.php, line 971 View::_render() - CORE/Cake/View/View.php, line 933 View::render() - CORE/Cake/View/View.php, line 473 Controller::render() - CORE/Cake/Controller/Controller.php, line 963 Dispatcher::_invoke() - CORE/Cake/Routing/Dispatcher.php, line 200 Dispatcher::dispatch() - CORE/Cake/Routing/Dispatcher.php, line 167 [main] - APP/webroot/index.php, line 109
6. The Tribunal has not granted deduction to the assessee under s. 43B of the Act in regard to the alleged payments of sales-tax, central sales-tax and entry-tax. The Tribunal only directed the AO to verify whether payment has been made and if satisfied to grant deduction. This part of the decision of the Tribunal cannot be said to have given rise to any question of law. Other questions are incidental to the alleged main questions and do not require independent consideration.
Notice (8): Undefined variable: query [APP/View/Case/amp.ctp, line 144]Code Contextecho $this->Adsense->display('responsive_rect');}echo html_entity_decode($this->Wand->highlight($content[$i], $query));$viewFile = '/home/legalcrystal/app/View/Case/amp.ctp' $dataForView = array( 'title_for_layout' => 'Commissioner of Income Tax Vs Co Operative Processing and Marketing Society - Citation 510422 - Court Judgment | ', 'desc' => array( 'Judgement' => array( 'id' => '510422', 'acts' => '', 'appealno' => 'MCC No. 563 of 1995 & other connected cases, 27th September, 1995', 'appellant' => 'Commissioner of Income Tax', 'authreffered' => '', 'casename' => 'Commissioner of Income Tax Vs. Co-operative Processing and Marketing Society.', 'casenote' => ' - CONSTITUTION OF INDIA 1055. Article 141; [A.K. Patnaik, C.J., Dipak Misra, Abhay Gohil, S. Samvatsar, & S.K. Gangele, JJ] Dismissal of SLP arising from decision of High Court Whether binding precedent Decision of Division Bench in Rama and Company v. State of Madhya Pradesh, [2007(II) MPJR 229] overruled by Full Bench of same High Court Prior to delivery of decision of Full Bench order passed in Division Bench decision assailed in SLP before Supreme Court Dismissal of SLP by short reasoned order, though declaration of law, but High Court is bound to follow earlier decisions in field regard being had to concept of precedents as per law laid down by Apex Court and Larger bench decision in Jabalpur Bus Operators Association, reported in [2003(1) MPJR 158]. Court clarifies that Dr. Jaidev Siddha v. Jaiprakash Siddha, 2007(2) MPJR (FB) 361; AIR 2007 MP 269 (FB) is not impliedly overruled in view of dismissal of SLP Articles 226 & 227; [A.K. Patnaik, C.J., Dipak Misra, Abhay Gohil, S. Samvatsar, & S.K. Gangele, JJ] Power to issue writ under Article 226 - [per Majority] The High Courts exercise original jurisdiction under Article 226 of the Constitution and supervisory jurisdiction and the power of superintendence under Article 227 of the Constitution. But, an eloquent and fertile one, a writ of certiorari is issued in exercise of original jurisdiction. Whenever word supervisory has been used in the context of Article 226 it is in contrast with the appellate or revisional jurisdiction. When a writ is issued under Article 226 of the Constitution in respect of Courts or tribunals it is done in exercise of original jurisdiction and the parameters are different than Article 227 of the Constitution of India. It is worth noting that the power under Article 227 was there in a different manner under the Government of India Act. Power of superintendence is distinct from the exercise of power of revisional or supervisory jurisdiction which is a facet of the power of superintendence. The confusion occurs when one applies the principle of equivalence or equates the exercise of supervisory power and power of superintendence with original or supervisory jurisdiction. There is an acceptable nuance between the concept of jurisdiction and exercise of power by certain parameters. Both do come within the fundamental concept of judicial review but the jurisdiction exercised is different when under Article 226 a writ is issued it is issued in exercise of original jurisdiction whether against a tribunal or inferior Courts or administrative authorities. The word superintendence has not been used in Article 226 of the Constitution. It is also evident that the term writs is not referred to in Article 227. On a scrutiny of Article 227 it would be crystal clear that power of superintendence conferred on the High Courts is a power that is restricted to the Courts and tribunal in relation to which it exercises jurisdiction. On the contrary the power conferred on the High Court under Article 226 is not constricted and confined to the Courts and tribunals but it extends to any person or authority. Be it noted, Article 226 as has been engrafted in the Constitution covers entirely a new area, a broader one in a larger spectrum. When the Legislature has used the terms in exercise of original jurisdiction and supervisory jurisdiction it has to be understood that they are used in contradistinction in the constitutional context as has been interpreted by the Apex Court. The words of the Section have to be understood to mean exercise of powers under Article 226 of the Constitution of India which is always original. -- M.P. SAMAJ KE KAMJOR VARGON KE KRISHI BHUMI HADAPNE SAMBANDHI KUCHAKRON SE PARITRAN TATHA MUKTI ADHINIYAM [3/1977]. Section 2: Writ appeal Maintainability from order of single Judge-When permissible Held, Maintainability of a writ appeal from an order of the learned single Judge would depend upon many an aspect and cannot be put into a strait jacket formula. It cannot be stated with mathematical exactitude. It would depend upon the pleadings in the writ petition, nature of the order passed by the single Judge, character and the contour of the order, directions issued, nomenclature given and the jurisdictional prospective in the constitutional context are to be perceived. It cannot be said in a hyper-technical manner that an order passed in a writ petition, if there is assail to the order emerging from the inferior tribunal or subordinate Courts has to be treated all the time for all purposes to be under Article 227 of the Constitution of India. It would depend upon the real nature of the order passed by the learned single Judge. The pleadings also assume immense significance. It would not be an over emphasis to state that an order in a writ petition can fit into the subtle contour of Articles 226 and 227 of the Constitution in a composite manner and they can co-inside, co-exist, overlap or imbricate. In this context it is apt to note that there may be cases where the single Judge may feel disposed or inclined to issue a writ to do full and complete justice because it is to be borne in mind that Article 226 of the Constitution is fundamentally a repository and reservoir of justice based on equity and good conscience. It will depend upon factual matrix of each case. Dr. Jaidev Siddha v. Jaiprakash Siddha, 2007(2) MPJR (FB) 361: AIR 2007 MP 269 (FB) is not impliedly overruled in view of dismissal of SLP preferred against order reported in Rama and Company v. State of Madhya Pradesh [2007 (2) MPJR 229 (DB) (MP)]. - The Tribunal only directed the AO to verify whether payment has been made and if satisfied to grant deduction.', 'caseanalysis' => null, 'casesref' => '', 'citingcases' => '', 'counselplain' => '', 'counseldef' => '', 'court' => 'Madhya Pradesh', 'court_type' => 'HC', 'decidedon' => '1995-09-27', 'deposition' => '', 'favorof' => null, 'findings' => null, 'judge' => '', 'judgement' => 'ORDER<p style="text-align: justify;">BY THE COURT :</p><p style="text-align: justify;">These are applications filed by the Revenue under s. 256(2) of the IT Act, 1961, for stating the case and to make reference of the following common questions :</p><p style="text-align: justify;">'(i) Whether, on the facts and in the circumstances of the case, the Tribunal was justified in holding that ginning and pressing charges received from the members is allowable as an exemption though it was with the aid of power ?</p><p style="text-align: justify;">(ii) Whether, on the facts and in the circumstances of the case, the Tribunal was justified in holding that the claim of the assessee though not admissible within the provisions of s. 80P(2)(v) but is admissible under s. 80P(2)(a)(iii) </p><p style="text-align: justify;">(iii) Whether, on the facts and in the circumstances of the case, the Tribunal was justified in deleting interest under s. 217 </p><p style="text-align: justify;">(iv) Whether, on the facts and in the circumstances of the case, the Tribunal was justified in deleting interest under s. 217 </p><p style="text-align: justify;">(v) Whether, on the facts and in the circumstances of the case, Tribunal was justified in directing the Assessing Officer to verify the claim and to allow it the payment of sales-tax, central sales-tax, and entry-tax has been made before filing the returns under s. 139(1) even when the proviso was introduced w.e.f. 1st April, 1988, and not for the earlier years </p><p style="text-align: justify;">(vi) Whether, on the facts and in the circumstances of the case, Tribunal was justified in deleting the penalty amounting to Rs. 1,30,000 on the ground that the foundation of levy of penalty does stand even when the Department has not accepted the same ?'</p><p style="text-align: justify;">2. We have heard learned senior standing counsel for the Revenue. The assessee involved in these case is a co-operative society. The assessment years are during the period 1981 to 1985. Questions 1 and 2 are practically a repetition of the same question. Question No. 4 is a repetition of question No. 3. Therefore, the question No. 4 is deleted. Questions 5 and 6 are renumbered as question Nos. 4 and 5.</p><p style="text-align: justify;">3. The assessee is a co-operative society whose members are cotton growers. The society has been established to help the members in the matter of ginning and pressing cotton and finding market for the processed cotton. The society charges fee for ginning and pressing and also collects a fee for assessing the marketing operations from members. The society contended that it is engaged in marketing of agricultural produce of its members and also processing the agricultural produce of its members and, therefore, it is entitled for deduction of the whole of amount of profit and gains of business attributable to such activities from the assessable income under s. 80P(2) of the Act. The Assessing Officer (AO) negatived this claim on the ground that s. 80P(2)(v) can be invoked only where the processing is done without the aid of power and since processing is done by the assessee with the aid of power, deduction cannot be granted. The appellate authority and the Tribunal took the view that deduction has to be granted under s. 80P(2)(iii) of the Act since the society is engaged in marketing of agricultural produce of its members. It is this decision which has given rise to question Nos. 1 and 2. Question No. 3 is incidental to the answers to question Nos. 1 and 2.</p><p style="text-align: justify;">4. Sec. 43B of the Act states, inter alia, that where sales-tax, central sales-tax and entry-tax is alleged to be paid, deduction is to be given only on actual payment and not on the basis of subsistence of liability. The AO held that payment is not proved and deleted deduction. Tribunal directed him to enquire under the question as to what extent payment has been made and to give deduction to the actual payment made. This decision has led to question No. 4. Question No. 5 is incidental to the answers to other questions.</p><p style="text-align: justify;">5. The order of the Tribunal makes it abundantly clear that deduction is granted in regard to profits from the ginning and pressing operation only because the society is engaged in marketing of agricultural produce of its members. This is under s. 80P(2)(iii) of the Act. The condition that processing shall be done without the aid of the power, seen in sub-cl. (v), is not a condition precedent with reference to sub-cl. (iii). This matter has been clarified by the Supreme Court with reference to the provisions of the Act as they stood prior to 1968 amendment [see Broach Distt. Co-operative Cotton Sales Ginning & Pressing Society Ltd. vs . CIT : [1989]177ITR418(SC) ]. In regard to the controversy arising in these cases, the amendment has not made any practical difference. The question is, therefore, covered by the decision of the Supreme Court and cannot be said to arise.</p><p style="text-align: justify;">6. The Tribunal has not granted deduction to the assessee under s. 43B of the Act in regard to the alleged payments of sales-tax, central sales-tax and entry-tax. The Tribunal only directed the AO to verify whether payment has been made and if satisfied to grant deduction. This part of the decision of the Tribunal cannot be said to have given rise to any question of law. Other questions are incidental to the alleged main questions and do not require independent consideration.</p><p style="text-align: justify;">7. For the reasons indicated above, we hold that no question of law calling for stating the case and making a reference arises for consideration in these cases. Applications are accordingly dismissed.<p style="text-align: justify;"></p><p style="text-align: justify;">', 'observations' => null, 'overruledby' => null, 'prhistory' => '', 'pubs' => '(1996)130CTR(MP)431', 'ratiodecidendi' => '', 'respondent' => 'Co-operative Processing and Marketing Society.', 'sub' => 'Direct Taxation', 'link' => null, 'circuit' => null ) ), 'casename_url' => 'commissioner-income-tax-vs-operative-processing', 'args' => array( (int) 0 => '510422', (int) 1 => 'commissioner-income-tax-vs-operative-processing' ) ) $title_for_layout = 'Commissioner of Income Tax Vs Co Operative Processing and Marketing Society - Citation 510422 - Court Judgment | ' $desc = array( 'Judgement' => array( 'id' => '510422', 'acts' => '', 'appealno' => 'MCC No. 563 of 1995 & other connected cases, 27th September, 1995', 'appellant' => 'Commissioner of Income Tax', 'authreffered' => '', 'casename' => 'Commissioner of Income Tax Vs. Co-operative Processing and Marketing Society.', 'casenote' => ' - CONSTITUTION OF INDIA 1055. Article 141; [A.K. Patnaik, C.J., Dipak Misra, Abhay Gohil, S. Samvatsar, & S.K. Gangele, JJ] Dismissal of SLP arising from decision of High Court Whether binding precedent Decision of Division Bench in Rama and Company v. State of Madhya Pradesh, [2007(II) MPJR 229] overruled by Full Bench of same High Court Prior to delivery of decision of Full Bench order passed in Division Bench decision assailed in SLP before Supreme Court Dismissal of SLP by short reasoned order, though declaration of law, but High Court is bound to follow earlier decisions in field regard being had to concept of precedents as per law laid down by Apex Court and Larger bench decision in Jabalpur Bus Operators Association, reported in [2003(1) MPJR 158]. Court clarifies that Dr. Jaidev Siddha v. Jaiprakash Siddha, 2007(2) MPJR (FB) 361; AIR 2007 MP 269 (FB) is not impliedly overruled in view of dismissal of SLP Articles 226 & 227; [A.K. Patnaik, C.J., Dipak Misra, Abhay Gohil, S. Samvatsar, & S.K. Gangele, JJ] Power to issue writ under Article 226 - [per Majority] The High Courts exercise original jurisdiction under Article 226 of the Constitution and supervisory jurisdiction and the power of superintendence under Article 227 of the Constitution. But, an eloquent and fertile one, a writ of certiorari is issued in exercise of original jurisdiction. Whenever word supervisory has been used in the context of Article 226 it is in contrast with the appellate or revisional jurisdiction. When a writ is issued under Article 226 of the Constitution in respect of Courts or tribunals it is done in exercise of original jurisdiction and the parameters are different than Article 227 of the Constitution of India. It is worth noting that the power under Article 227 was there in a different manner under the Government of India Act. Power of superintendence is distinct from the exercise of power of revisional or supervisory jurisdiction which is a facet of the power of superintendence. The confusion occurs when one applies the principle of equivalence or equates the exercise of supervisory power and power of superintendence with original or supervisory jurisdiction. There is an acceptable nuance between the concept of jurisdiction and exercise of power by certain parameters. Both do come within the fundamental concept of judicial review but the jurisdiction exercised is different when under Article 226 a writ is issued it is issued in exercise of original jurisdiction whether against a tribunal or inferior Courts or administrative authorities. The word superintendence has not been used in Article 226 of the Constitution. It is also evident that the term writs is not referred to in Article 227. On a scrutiny of Article 227 it would be crystal clear that power of superintendence conferred on the High Courts is a power that is restricted to the Courts and tribunal in relation to which it exercises jurisdiction. On the contrary the power conferred on the High Court under Article 226 is not constricted and confined to the Courts and tribunals but it extends to any person or authority. Be it noted, Article 226 as has been engrafted in the Constitution covers entirely a new area, a broader one in a larger spectrum. When the Legislature has used the terms in exercise of original jurisdiction and supervisory jurisdiction it has to be understood that they are used in contradistinction in the constitutional context as has been interpreted by the Apex Court. The words of the Section have to be understood to mean exercise of powers under Article 226 of the Constitution of India which is always original. -- M.P. SAMAJ KE KAMJOR VARGON KE KRISHI BHUMI HADAPNE SAMBANDHI KUCHAKRON SE PARITRAN TATHA MUKTI ADHINIYAM [3/1977]. Section 2: Writ appeal Maintainability from order of single Judge-When permissible Held, Maintainability of a writ appeal from an order of the learned single Judge would depend upon many an aspect and cannot be put into a strait jacket formula. It cannot be stated with mathematical exactitude. It would depend upon the pleadings in the writ petition, nature of the order passed by the single Judge, character and the contour of the order, directions issued, nomenclature given and the jurisdictional prospective in the constitutional context are to be perceived. It cannot be said in a hyper-technical manner that an order passed in a writ petition, if there is assail to the order emerging from the inferior tribunal or subordinate Courts has to be treated all the time for all purposes to be under Article 227 of the Constitution of India. It would depend upon the real nature of the order passed by the learned single Judge. The pleadings also assume immense significance. It would not be an over emphasis to state that an order in a writ petition can fit into the subtle contour of Articles 226 and 227 of the Constitution in a composite manner and they can co-inside, co-exist, overlap or imbricate. In this context it is apt to note that there may be cases where the single Judge may feel disposed or inclined to issue a writ to do full and complete justice because it is to be borne in mind that Article 226 of the Constitution is fundamentally a repository and reservoir of justice based on equity and good conscience. It will depend upon factual matrix of each case. Dr. Jaidev Siddha v. Jaiprakash Siddha, 2007(2) MPJR (FB) 361: AIR 2007 MP 269 (FB) is not impliedly overruled in view of dismissal of SLP preferred against order reported in Rama and Company v. State of Madhya Pradesh [2007 (2) MPJR 229 (DB) (MP)]. - The Tribunal only directed the AO to verify whether payment has been made and if satisfied to grant deduction.', 'caseanalysis' => null, 'casesref' => '', 'citingcases' => '', 'counselplain' => '', 'counseldef' => '', 'court' => 'Madhya Pradesh', 'court_type' => 'HC', 'decidedon' => '1995-09-27', 'deposition' => '', 'favorof' => null, 'findings' => null, 'judge' => '', 'judgement' => 'ORDER<p>BY THE COURT :</p><p>These are applications filed by the Revenue under s. 256(2) of the IT Act, 1961, for stating the case and to make reference of the following common questions :</p><p>'(i) Whether, on the facts and in the circumstances of the case, the Tribunal was justified in holding that ginning and pressing charges received from the members is allowable as an exemption though it was with the aid of power ?</p><p>(ii) Whether, on the facts and in the circumstances of the case, the Tribunal was justified in holding that the claim of the assessee though not admissible within the provisions of s. 80P(2)(v) but is admissible under s. 80P(2)(a)(iii) </p><p>(iii) Whether, on the facts and in the circumstances of the case, the Tribunal was justified in deleting interest under s. 217 </p><p>(iv) Whether, on the facts and in the circumstances of the case, the Tribunal was justified in deleting interest under s. 217 </p><p>(v) Whether, on the facts and in the circumstances of the case, Tribunal was justified in directing the Assessing Officer to verify the claim and to allow it the payment of sales-tax, central sales-tax, and entry-tax has been made before filing the returns under s. 139(1) even when the proviso was introduced w.e.f. 1st April, 1988, and not for the earlier years </p><p>(vi) Whether, on the facts and in the circumstances of the case, Tribunal was justified in deleting the penalty amounting to Rs. 1,30,000 on the ground that the foundation of levy of penalty does stand even when the Department has not accepted the same ?'</p><p>2. We have heard learned senior standing counsel for the Revenue. The assessee involved in these case is a co-operative society. The assessment years are during the period 1981 to 1985. Questions 1 and 2 are practically a repetition of the same question. Question No. 4 is a repetition of question No. 3. Therefore, the question No. 4 is deleted. Questions 5 and 6 are renumbered as question Nos. 4 and 5.</p><p>3. The assessee is a co-operative society whose members are cotton growers. The society has been established to help the members in the matter of ginning and pressing cotton and finding market for the processed cotton. The society charges fee for ginning and pressing and also collects a fee for assessing the marketing operations from members. The society contended that it is engaged in marketing of agricultural produce of its members and also processing the agricultural produce of its members and, therefore, it is entitled for deduction of the whole of amount of profit and gains of business attributable to such activities from the assessable income under s. 80P(2) of the Act. The Assessing Officer (AO) negatived this claim on the ground that s. 80P(2)(v) can be invoked only where the processing is done without the aid of power and since processing is done by the assessee with the aid of power, deduction cannot be granted. The appellate authority and the Tribunal took the view that deduction has to be granted under s. 80P(2)(iii) of the Act since the society is engaged in marketing of agricultural produce of its members. It is this decision which has given rise to question Nos. 1 and 2. Question No. 3 is incidental to the answers to question Nos. 1 and 2.</p><p>4. Sec. 43B of the Act states, inter alia, that where sales-tax, central sales-tax and entry-tax is alleged to be paid, deduction is to be given only on actual payment and not on the basis of subsistence of liability. The AO held that payment is not proved and deleted deduction. Tribunal directed him to enquire under the question as to what extent payment has been made and to give deduction to the actual payment made. This decision has led to question No. 4. Question No. 5 is incidental to the answers to other questions.</p><p>5. The order of the Tribunal makes it abundantly clear that deduction is granted in regard to profits from the ginning and pressing operation only because the society is engaged in marketing of agricultural produce of its members. This is under s. 80P(2)(iii) of the Act. The condition that processing shall be done without the aid of the power, seen in sub-cl. (v), is not a condition precedent with reference to sub-cl. (iii). This matter has been clarified by the Supreme Court with reference to the provisions of the Act as they stood prior to 1968 amendment [see Broach Distt. Co-operative Cotton Sales Ginning & Pressing Society Ltd. vs . CIT : [1989]177ITR418(SC) ]. In regard to the controversy arising in these cases, the amendment has not made any practical difference. The question is, therefore, covered by the decision of the Supreme Court and cannot be said to arise.</p><p>6. The Tribunal has not granted deduction to the assessee under s. 43B of the Act in regard to the alleged payments of sales-tax, central sales-tax and entry-tax. The Tribunal only directed the AO to verify whether payment has been made and if satisfied to grant deduction. This part of the decision of the Tribunal cannot be said to have given rise to any question of law. Other questions are incidental to the alleged main questions and do not require independent consideration.</p><p>7. For the reasons indicated above, we hold that no question of law calling for stating the case and making a reference arises for consideration in these cases. Applications are accordingly dismissed.<p></p><p>', 'observations' => null, 'overruledby' => null, 'prhistory' => '', 'pubs' => '(1996)130CTR(MP)431', 'ratiodecidendi' => '', 'respondent' => 'Co-operative Processing and Marketing Society.', 'sub' => 'Direct Taxation', 'link' => null, 'circuit' => null ) ) $casename_url = 'commissioner-income-tax-vs-operative-processing' $args = array( (int) 0 => '510422', (int) 1 => 'commissioner-income-tax-vs-operative-processing' ) $url = 'https://sooperkanoon.com/case/amp/510422/commissioner-income-tax-vs-operative-processing' $ctype = ' High Court' $content = array( (int) 0 => 'ORDER<p>BY THE COURT :', (int) 1 => '<p>These are applications filed by the Revenue under s. 256(2) of the IT Act, 1961, for stating the case and to make reference of the following common questions :', (int) 2 => '<p>'(i) Whether, on the facts and in the circumstances of the case, the Tribunal was justified in holding that ginning and pressing charges received from the members is allowable as an exemption though it was with the aid of power ?', (int) 3 => '<p>(ii) Whether, on the facts and in the circumstances of the case, the Tribunal was justified in holding that the claim of the assessee though not admissible within the provisions of s. 80P(2)(v) but is admissible under s. 80P(2)(a)(iii) ', (int) 4 => '<p>(iii) Whether, on the facts and in the circumstances of the case, the Tribunal was justified in deleting interest under s. 217 ', (int) 5 => '<p>(iv) Whether, on the facts and in the circumstances of the case, the Tribunal was justified in deleting interest under s. 217 ', (int) 6 => '<p>(v) Whether, on the facts and in the circumstances of the case, Tribunal was justified in directing the Assessing Officer to verify the claim and to allow it the payment of sales-tax, central sales-tax, and entry-tax has been made before filing the returns under s. 139(1) even when the proviso was introduced w.e.f. 1st April, 1988, and not for the earlier years ', (int) 7 => '<p>(vi) Whether, on the facts and in the circumstances of the case, Tribunal was justified in deleting the penalty amounting to Rs. 1,30,000 on the ground that the foundation of levy of penalty does stand even when the Department has not accepted the same ?'', (int) 8 => '<p>2. We have heard learned senior standing counsel for the Revenue. The assessee involved in these case is a co-operative society. The assessment years are during the period 1981 to 1985. Questions 1 and 2 are practically a repetition of the same question. Question No. 4 is a repetition of question No. 3. Therefore, the question No. 4 is deleted. Questions 5 and 6 are renumbered as question Nos. 4 and 5.', (int) 9 => '<p>3. The assessee is a co-operative society whose members are cotton growers. The society has been established to help the members in the matter of ginning and pressing cotton and finding market for the processed cotton. The society charges fee for ginning and pressing and also collects a fee for assessing the marketing operations from members. The society contended that it is engaged in marketing of agricultural produce of its members and also processing the agricultural produce of its members and, therefore, it is entitled for deduction of the whole of amount of profit and gains of business attributable to such activities from the assessable income under s. 80P(2) of the Act. The Assessing Officer (AO) negatived this claim on the ground that s. 80P(2)(v) can be invoked only where the processing is done without the aid of power and since processing is done by the assessee with the aid of power, deduction cannot be granted. The appellate authority and the Tribunal took the view that deduction has to be granted under s. 80P(2)(iii) of the Act since the society is engaged in marketing of agricultural produce of its members. It is this decision which has given rise to question Nos. 1 and 2. Question No. 3 is incidental to the answers to question Nos. 1 and 2.', (int) 10 => '<p>4. Sec. 43B of the Act states, inter alia, that where sales-tax, central sales-tax and entry-tax is alleged to be paid, deduction is to be given only on actual payment and not on the basis of subsistence of liability. The AO held that payment is not proved and deleted deduction. Tribunal directed him to enquire under the question as to what extent payment has been made and to give deduction to the actual payment made. This decision has led to question No. 4. Question No. 5 is incidental to the answers to other questions.', (int) 11 => '<p>5. The order of the Tribunal makes it abundantly clear that deduction is granted in regard to profits from the ginning and pressing operation only because the society is engaged in marketing of agricultural produce of its members. This is under s. 80P(2)(iii) of the Act. The condition that processing shall be done without the aid of the power, seen in sub-cl. (v), is not a condition precedent with reference to sub-cl. (iii). This matter has been clarified by the Supreme Court with reference to the provisions of the Act as they stood prior to 1968 amendment [see Broach Distt. Co-operative Cotton Sales Ginning & Pressing Society Ltd. vs . CIT : [1989]177ITR418(SC) ]. In regard to the controversy arising in these cases, the amendment has not made any practical difference. The question is, therefore, covered by the decision of the Supreme Court and cannot be said to arise.', (int) 12 => '<p>6. The Tribunal has not granted deduction to the assessee under s. 43B of the Act in regard to the alleged payments of sales-tax, central sales-tax and entry-tax. The Tribunal only directed the AO to verify whether payment has been made and if satisfied to grant deduction. This part of the decision of the Tribunal cannot be said to have given rise to any question of law. Other questions are incidental to the alleged main questions and do not require independent consideration.', (int) 13 => '<p>7. For the reasons indicated above, we hold that no question of law calling for stating the case and making a reference arises for consideration in these cases. Applications are accordingly dismissed.<p>', (int) 14 => '<p>' ) $paragraphAfter = (int) 1 $cnt = (int) 15 $i = (int) 13include - APP/View/Case/amp.ctp, line 144 View::_evaluate() - CORE/Cake/View/View.php, line 971 View::_render() - CORE/Cake/View/View.php, line 933 View::render() - CORE/Cake/View/View.php, line 473 Controller::render() - CORE/Cake/Controller/Controller.php, line 963 Dispatcher::_invoke() - CORE/Cake/Routing/Dispatcher.php, line 200 Dispatcher::dispatch() - CORE/Cake/Routing/Dispatcher.php, line 167 [main] - APP/webroot/index.php, line 109
7. For the reasons indicated above, we hold that no question of law calling for stating the case and making a reference arises for consideration in these cases. Applications are accordingly dismissed.
Notice (8): Undefined variable: query [APP/View/Case/amp.ctp, line 144]Code Contextecho $this->Adsense->display('responsive_rect');}echo html_entity_decode($this->Wand->highlight($content[$i], $query));$viewFile = '/home/legalcrystal/app/View/Case/amp.ctp' $dataForView = array( 'title_for_layout' => 'Commissioner of Income Tax Vs Co Operative Processing and Marketing Society - Citation 510422 - Court Judgment | ', 'desc' => array( 'Judgement' => array( 'id' => '510422', 'acts' => '', 'appealno' => 'MCC No. 563 of 1995 & other connected cases, 27th September, 1995', 'appellant' => 'Commissioner of Income Tax', 'authreffered' => '', 'casename' => 'Commissioner of Income Tax Vs. Co-operative Processing and Marketing Society.', 'casenote' => ' - CONSTITUTION OF INDIA 1055. Article 141; [A.K. Patnaik, C.J., Dipak Misra, Abhay Gohil, S. Samvatsar, & S.K. Gangele, JJ] Dismissal of SLP arising from decision of High Court Whether binding precedent Decision of Division Bench in Rama and Company v. State of Madhya Pradesh, [2007(II) MPJR 229] overruled by Full Bench of same High Court Prior to delivery of decision of Full Bench order passed in Division Bench decision assailed in SLP before Supreme Court Dismissal of SLP by short reasoned order, though declaration of law, but High Court is bound to follow earlier decisions in field regard being had to concept of precedents as per law laid down by Apex Court and Larger bench decision in Jabalpur Bus Operators Association, reported in [2003(1) MPJR 158]. Court clarifies that Dr. Jaidev Siddha v. Jaiprakash Siddha, 2007(2) MPJR (FB) 361; AIR 2007 MP 269 (FB) is not impliedly overruled in view of dismissal of SLP Articles 226 & 227; [A.K. Patnaik, C.J., Dipak Misra, Abhay Gohil, S. Samvatsar, & S.K. Gangele, JJ] Power to issue writ under Article 226 - [per Majority] The High Courts exercise original jurisdiction under Article 226 of the Constitution and supervisory jurisdiction and the power of superintendence under Article 227 of the Constitution. But, an eloquent and fertile one, a writ of certiorari is issued in exercise of original jurisdiction. Whenever word supervisory has been used in the context of Article 226 it is in contrast with the appellate or revisional jurisdiction. When a writ is issued under Article 226 of the Constitution in respect of Courts or tribunals it is done in exercise of original jurisdiction and the parameters are different than Article 227 of the Constitution of India. It is worth noting that the power under Article 227 was there in a different manner under the Government of India Act. Power of superintendence is distinct from the exercise of power of revisional or supervisory jurisdiction which is a facet of the power of superintendence. The confusion occurs when one applies the principle of equivalence or equates the exercise of supervisory power and power of superintendence with original or supervisory jurisdiction. There is an acceptable nuance between the concept of jurisdiction and exercise of power by certain parameters. Both do come within the fundamental concept of judicial review but the jurisdiction exercised is different when under Article 226 a writ is issued it is issued in exercise of original jurisdiction whether against a tribunal or inferior Courts or administrative authorities. The word superintendence has not been used in Article 226 of the Constitution. It is also evident that the term writs is not referred to in Article 227. On a scrutiny of Article 227 it would be crystal clear that power of superintendence conferred on the High Courts is a power that is restricted to the Courts and tribunal in relation to which it exercises jurisdiction. On the contrary the power conferred on the High Court under Article 226 is not constricted and confined to the Courts and tribunals but it extends to any person or authority. Be it noted, Article 226 as has been engrafted in the Constitution covers entirely a new area, a broader one in a larger spectrum. When the Legislature has used the terms in exercise of original jurisdiction and supervisory jurisdiction it has to be understood that they are used in contradistinction in the constitutional context as has been interpreted by the Apex Court. The words of the Section have to be understood to mean exercise of powers under Article 226 of the Constitution of India which is always original. -- M.P. SAMAJ KE KAMJOR VARGON KE KRISHI BHUMI HADAPNE SAMBANDHI KUCHAKRON SE PARITRAN TATHA MUKTI ADHINIYAM [3/1977]. Section 2: Writ appeal Maintainability from order of single Judge-When permissible Held, Maintainability of a writ appeal from an order of the learned single Judge would depend upon many an aspect and cannot be put into a strait jacket formula. It cannot be stated with mathematical exactitude. It would depend upon the pleadings in the writ petition, nature of the order passed by the single Judge, character and the contour of the order, directions issued, nomenclature given and the jurisdictional prospective in the constitutional context are to be perceived. It cannot be said in a hyper-technical manner that an order passed in a writ petition, if there is assail to the order emerging from the inferior tribunal or subordinate Courts has to be treated all the time for all purposes to be under Article 227 of the Constitution of India. It would depend upon the real nature of the order passed by the learned single Judge. The pleadings also assume immense significance. It would not be an over emphasis to state that an order in a writ petition can fit into the subtle contour of Articles 226 and 227 of the Constitution in a composite manner and they can co-inside, co-exist, overlap or imbricate. In this context it is apt to note that there may be cases where the single Judge may feel disposed or inclined to issue a writ to do full and complete justice because it is to be borne in mind that Article 226 of the Constitution is fundamentally a repository and reservoir of justice based on equity and good conscience. It will depend upon factual matrix of each case. Dr. Jaidev Siddha v. Jaiprakash Siddha, 2007(2) MPJR (FB) 361: AIR 2007 MP 269 (FB) is not impliedly overruled in view of dismissal of SLP preferred against order reported in Rama and Company v. State of Madhya Pradesh [2007 (2) MPJR 229 (DB) (MP)]. - The Tribunal only directed the AO to verify whether payment has been made and if satisfied to grant deduction.', 'caseanalysis' => null, 'casesref' => '', 'citingcases' => '', 'counselplain' => '', 'counseldef' => '', 'court' => 'Madhya Pradesh', 'court_type' => 'HC', 'decidedon' => '1995-09-27', 'deposition' => '', 'favorof' => null, 'findings' => null, 'judge' => '', 'judgement' => 'ORDER<p style="text-align: justify;">BY THE COURT :</p><p style="text-align: justify;">These are applications filed by the Revenue under s. 256(2) of the IT Act, 1961, for stating the case and to make reference of the following common questions :</p><p style="text-align: justify;">'(i) Whether, on the facts and in the circumstances of the case, the Tribunal was justified in holding that ginning and pressing charges received from the members is allowable as an exemption though it was with the aid of power ?</p><p style="text-align: justify;">(ii) Whether, on the facts and in the circumstances of the case, the Tribunal was justified in holding that the claim of the assessee though not admissible within the provisions of s. 80P(2)(v) but is admissible under s. 80P(2)(a)(iii) </p><p style="text-align: justify;">(iii) Whether, on the facts and in the circumstances of the case, the Tribunal was justified in deleting interest under s. 217 </p><p style="text-align: justify;">(iv) Whether, on the facts and in the circumstances of the case, the Tribunal was justified in deleting interest under s. 217 </p><p style="text-align: justify;">(v) Whether, on the facts and in the circumstances of the case, Tribunal was justified in directing the Assessing Officer to verify the claim and to allow it the payment of sales-tax, central sales-tax, and entry-tax has been made before filing the returns under s. 139(1) even when the proviso was introduced w.e.f. 1st April, 1988, and not for the earlier years </p><p style="text-align: justify;">(vi) Whether, on the facts and in the circumstances of the case, Tribunal was justified in deleting the penalty amounting to Rs. 1,30,000 on the ground that the foundation of levy of penalty does stand even when the Department has not accepted the same ?'</p><p style="text-align: justify;">2. We have heard learned senior standing counsel for the Revenue. The assessee involved in these case is a co-operative society. The assessment years are during the period 1981 to 1985. Questions 1 and 2 are practically a repetition of the same question. Question No. 4 is a repetition of question No. 3. Therefore, the question No. 4 is deleted. Questions 5 and 6 are renumbered as question Nos. 4 and 5.</p><p style="text-align: justify;">3. The assessee is a co-operative society whose members are cotton growers. The society has been established to help the members in the matter of ginning and pressing cotton and finding market for the processed cotton. The society charges fee for ginning and pressing and also collects a fee for assessing the marketing operations from members. The society contended that it is engaged in marketing of agricultural produce of its members and also processing the agricultural produce of its members and, therefore, it is entitled for deduction of the whole of amount of profit and gains of business attributable to such activities from the assessable income under s. 80P(2) of the Act. The Assessing Officer (AO) negatived this claim on the ground that s. 80P(2)(v) can be invoked only where the processing is done without the aid of power and since processing is done by the assessee with the aid of power, deduction cannot be granted. The appellate authority and the Tribunal took the view that deduction has to be granted under s. 80P(2)(iii) of the Act since the society is engaged in marketing of agricultural produce of its members. It is this decision which has given rise to question Nos. 1 and 2. Question No. 3 is incidental to the answers to question Nos. 1 and 2.</p><p style="text-align: justify;">4. Sec. 43B of the Act states, inter alia, that where sales-tax, central sales-tax and entry-tax is alleged to be paid, deduction is to be given only on actual payment and not on the basis of subsistence of liability. The AO held that payment is not proved and deleted deduction. Tribunal directed him to enquire under the question as to what extent payment has been made and to give deduction to the actual payment made. This decision has led to question No. 4. Question No. 5 is incidental to the answers to other questions.</p><p style="text-align: justify;">5. The order of the Tribunal makes it abundantly clear that deduction is granted in regard to profits from the ginning and pressing operation only because the society is engaged in marketing of agricultural produce of its members. This is under s. 80P(2)(iii) of the Act. The condition that processing shall be done without the aid of the power, seen in sub-cl. (v), is not a condition precedent with reference to sub-cl. (iii). This matter has been clarified by the Supreme Court with reference to the provisions of the Act as they stood prior to 1968 amendment [see Broach Distt. Co-operative Cotton Sales Ginning & Pressing Society Ltd. vs . CIT : [1989]177ITR418(SC) ]. In regard to the controversy arising in these cases, the amendment has not made any practical difference. The question is, therefore, covered by the decision of the Supreme Court and cannot be said to arise.</p><p style="text-align: justify;">6. The Tribunal has not granted deduction to the assessee under s. 43B of the Act in regard to the alleged payments of sales-tax, central sales-tax and entry-tax. The Tribunal only directed the AO to verify whether payment has been made and if satisfied to grant deduction. This part of the decision of the Tribunal cannot be said to have given rise to any question of law. Other questions are incidental to the alleged main questions and do not require independent consideration.</p><p style="text-align: justify;">7. For the reasons indicated above, we hold that no question of law calling for stating the case and making a reference arises for consideration in these cases. Applications are accordingly dismissed.<p style="text-align: justify;"></p><p style="text-align: justify;">', 'observations' => null, 'overruledby' => null, 'prhistory' => '', 'pubs' => '(1996)130CTR(MP)431', 'ratiodecidendi' => '', 'respondent' => 'Co-operative Processing and Marketing Society.', 'sub' => 'Direct Taxation', 'link' => null, 'circuit' => null ) ), 'casename_url' => 'commissioner-income-tax-vs-operative-processing', 'args' => array( (int) 0 => '510422', (int) 1 => 'commissioner-income-tax-vs-operative-processing' ) ) $title_for_layout = 'Commissioner of Income Tax Vs Co Operative Processing and Marketing Society - Citation 510422 - Court Judgment | ' $desc = array( 'Judgement' => array( 'id' => '510422', 'acts' => '', 'appealno' => 'MCC No. 563 of 1995 & other connected cases, 27th September, 1995', 'appellant' => 'Commissioner of Income Tax', 'authreffered' => '', 'casename' => 'Commissioner of Income Tax Vs. Co-operative Processing and Marketing Society.', 'casenote' => ' - CONSTITUTION OF INDIA 1055. Article 141; [A.K. Patnaik, C.J., Dipak Misra, Abhay Gohil, S. Samvatsar, & S.K. Gangele, JJ] Dismissal of SLP arising from decision of High Court Whether binding precedent Decision of Division Bench in Rama and Company v. State of Madhya Pradesh, [2007(II) MPJR 229] overruled by Full Bench of same High Court Prior to delivery of decision of Full Bench order passed in Division Bench decision assailed in SLP before Supreme Court Dismissal of SLP by short reasoned order, though declaration of law, but High Court is bound to follow earlier decisions in field regard being had to concept of precedents as per law laid down by Apex Court and Larger bench decision in Jabalpur Bus Operators Association, reported in [2003(1) MPJR 158]. Court clarifies that Dr. Jaidev Siddha v. Jaiprakash Siddha, 2007(2) MPJR (FB) 361; AIR 2007 MP 269 (FB) is not impliedly overruled in view of dismissal of SLP Articles 226 & 227; [A.K. Patnaik, C.J., Dipak Misra, Abhay Gohil, S. Samvatsar, & S.K. Gangele, JJ] Power to issue writ under Article 226 - [per Majority] The High Courts exercise original jurisdiction under Article 226 of the Constitution and supervisory jurisdiction and the power of superintendence under Article 227 of the Constitution. But, an eloquent and fertile one, a writ of certiorari is issued in exercise of original jurisdiction. Whenever word supervisory has been used in the context of Article 226 it is in contrast with the appellate or revisional jurisdiction. When a writ is issued under Article 226 of the Constitution in respect of Courts or tribunals it is done in exercise of original jurisdiction and the parameters are different than Article 227 of the Constitution of India. It is worth noting that the power under Article 227 was there in a different manner under the Government of India Act. Power of superintendence is distinct from the exercise of power of revisional or supervisory jurisdiction which is a facet of the power of superintendence. The confusion occurs when one applies the principle of equivalence or equates the exercise of supervisory power and power of superintendence with original or supervisory jurisdiction. There is an acceptable nuance between the concept of jurisdiction and exercise of power by certain parameters. Both do come within the fundamental concept of judicial review but the jurisdiction exercised is different when under Article 226 a writ is issued it is issued in exercise of original jurisdiction whether against a tribunal or inferior Courts or administrative authorities. The word superintendence has not been used in Article 226 of the Constitution. It is also evident that the term writs is not referred to in Article 227. On a scrutiny of Article 227 it would be crystal clear that power of superintendence conferred on the High Courts is a power that is restricted to the Courts and tribunal in relation to which it exercises jurisdiction. On the contrary the power conferred on the High Court under Article 226 is not constricted and confined to the Courts and tribunals but it extends to any person or authority. Be it noted, Article 226 as has been engrafted in the Constitution covers entirely a new area, a broader one in a larger spectrum. When the Legislature has used the terms in exercise of original jurisdiction and supervisory jurisdiction it has to be understood that they are used in contradistinction in the constitutional context as has been interpreted by the Apex Court. The words of the Section have to be understood to mean exercise of powers under Article 226 of the Constitution of India which is always original. -- M.P. SAMAJ KE KAMJOR VARGON KE KRISHI BHUMI HADAPNE SAMBANDHI KUCHAKRON SE PARITRAN TATHA MUKTI ADHINIYAM [3/1977]. Section 2: Writ appeal Maintainability from order of single Judge-When permissible Held, Maintainability of a writ appeal from an order of the learned single Judge would depend upon many an aspect and cannot be put into a strait jacket formula. It cannot be stated with mathematical exactitude. It would depend upon the pleadings in the writ petition, nature of the order passed by the single Judge, character and the contour of the order, directions issued, nomenclature given and the jurisdictional prospective in the constitutional context are to be perceived. It cannot be said in a hyper-technical manner that an order passed in a writ petition, if there is assail to the order emerging from the inferior tribunal or subordinate Courts has to be treated all the time for all purposes to be under Article 227 of the Constitution of India. It would depend upon the real nature of the order passed by the learned single Judge. The pleadings also assume immense significance. It would not be an over emphasis to state that an order in a writ petition can fit into the subtle contour of Articles 226 and 227 of the Constitution in a composite manner and they can co-inside, co-exist, overlap or imbricate. In this context it is apt to note that there may be cases where the single Judge may feel disposed or inclined to issue a writ to do full and complete justice because it is to be borne in mind that Article 226 of the Constitution is fundamentally a repository and reservoir of justice based on equity and good conscience. It will depend upon factual matrix of each case. Dr. Jaidev Siddha v. Jaiprakash Siddha, 2007(2) MPJR (FB) 361: AIR 2007 MP 269 (FB) is not impliedly overruled in view of dismissal of SLP preferred against order reported in Rama and Company v. State of Madhya Pradesh [2007 (2) MPJR 229 (DB) (MP)]. - The Tribunal only directed the AO to verify whether payment has been made and if satisfied to grant deduction.', 'caseanalysis' => null, 'casesref' => '', 'citingcases' => '', 'counselplain' => '', 'counseldef' => '', 'court' => 'Madhya Pradesh', 'court_type' => 'HC', 'decidedon' => '1995-09-27', 'deposition' => '', 'favorof' => null, 'findings' => null, 'judge' => '', 'judgement' => 'ORDER<p>BY THE COURT :</p><p>These are applications filed by the Revenue under s. 256(2) of the IT Act, 1961, for stating the case and to make reference of the following common questions :</p><p>'(i) Whether, on the facts and in the circumstances of the case, the Tribunal was justified in holding that ginning and pressing charges received from the members is allowable as an exemption though it was with the aid of power ?</p><p>(ii) Whether, on the facts and in the circumstances of the case, the Tribunal was justified in holding that the claim of the assessee though not admissible within the provisions of s. 80P(2)(v) but is admissible under s. 80P(2)(a)(iii) </p><p>(iii) Whether, on the facts and in the circumstances of the case, the Tribunal was justified in deleting interest under s. 217 </p><p>(iv) Whether, on the facts and in the circumstances of the case, the Tribunal was justified in deleting interest under s. 217 </p><p>(v) Whether, on the facts and in the circumstances of the case, Tribunal was justified in directing the Assessing Officer to verify the claim and to allow it the payment of sales-tax, central sales-tax, and entry-tax has been made before filing the returns under s. 139(1) even when the proviso was introduced w.e.f. 1st April, 1988, and not for the earlier years </p><p>(vi) Whether, on the facts and in the circumstances of the case, Tribunal was justified in deleting the penalty amounting to Rs. 1,30,000 on the ground that the foundation of levy of penalty does stand even when the Department has not accepted the same ?'</p><p>2. We have heard learned senior standing counsel for the Revenue. The assessee involved in these case is a co-operative society. The assessment years are during the period 1981 to 1985. Questions 1 and 2 are practically a repetition of the same question. Question No. 4 is a repetition of question No. 3. Therefore, the question No. 4 is deleted. Questions 5 and 6 are renumbered as question Nos. 4 and 5.</p><p>3. The assessee is a co-operative society whose members are cotton growers. The society has been established to help the members in the matter of ginning and pressing cotton and finding market for the processed cotton. The society charges fee for ginning and pressing and also collects a fee for assessing the marketing operations from members. The society contended that it is engaged in marketing of agricultural produce of its members and also processing the agricultural produce of its members and, therefore, it is entitled for deduction of the whole of amount of profit and gains of business attributable to such activities from the assessable income under s. 80P(2) of the Act. The Assessing Officer (AO) negatived this claim on the ground that s. 80P(2)(v) can be invoked only where the processing is done without the aid of power and since processing is done by the assessee with the aid of power, deduction cannot be granted. The appellate authority and the Tribunal took the view that deduction has to be granted under s. 80P(2)(iii) of the Act since the society is engaged in marketing of agricultural produce of its members. It is this decision which has given rise to question Nos. 1 and 2. Question No. 3 is incidental to the answers to question Nos. 1 and 2.</p><p>4. Sec. 43B of the Act states, inter alia, that where sales-tax, central sales-tax and entry-tax is alleged to be paid, deduction is to be given only on actual payment and not on the basis of subsistence of liability. The AO held that payment is not proved and deleted deduction. Tribunal directed him to enquire under the question as to what extent payment has been made and to give deduction to the actual payment made. This decision has led to question No. 4. Question No. 5 is incidental to the answers to other questions.</p><p>5. The order of the Tribunal makes it abundantly clear that deduction is granted in regard to profits from the ginning and pressing operation only because the society is engaged in marketing of agricultural produce of its members. This is under s. 80P(2)(iii) of the Act. The condition that processing shall be done without the aid of the power, seen in sub-cl. (v), is not a condition precedent with reference to sub-cl. (iii). This matter has been clarified by the Supreme Court with reference to the provisions of the Act as they stood prior to 1968 amendment [see Broach Distt. Co-operative Cotton Sales Ginning & Pressing Society Ltd. vs . CIT : [1989]177ITR418(SC) ]. In regard to the controversy arising in these cases, the amendment has not made any practical difference. The question is, therefore, covered by the decision of the Supreme Court and cannot be said to arise.</p><p>6. The Tribunal has not granted deduction to the assessee under s. 43B of the Act in regard to the alleged payments of sales-tax, central sales-tax and entry-tax. The Tribunal only directed the AO to verify whether payment has been made and if satisfied to grant deduction. This part of the decision of the Tribunal cannot be said to have given rise to any question of law. Other questions are incidental to the alleged main questions and do not require independent consideration.</p><p>7. For the reasons indicated above, we hold that no question of law calling for stating the case and making a reference arises for consideration in these cases. Applications are accordingly dismissed.<p></p><p>', 'observations' => null, 'overruledby' => null, 'prhistory' => '', 'pubs' => '(1996)130CTR(MP)431', 'ratiodecidendi' => '', 'respondent' => 'Co-operative Processing and Marketing Society.', 'sub' => 'Direct Taxation', 'link' => null, 'circuit' => null ) ) $casename_url = 'commissioner-income-tax-vs-operative-processing' $args = array( (int) 0 => '510422', (int) 1 => 'commissioner-income-tax-vs-operative-processing' ) $url = 'https://sooperkanoon.com/case/amp/510422/commissioner-income-tax-vs-operative-processing' $ctype = ' High Court' $content = array( (int) 0 => 'ORDER<p>BY THE COURT :', (int) 1 => '<p>These are applications filed by the Revenue under s. 256(2) of the IT Act, 1961, for stating the case and to make reference of the following common questions :', (int) 2 => '<p>'(i) Whether, on the facts and in the circumstances of the case, the Tribunal was justified in holding that ginning and pressing charges received from the members is allowable as an exemption though it was with the aid of power ?', (int) 3 => '<p>(ii) Whether, on the facts and in the circumstances of the case, the Tribunal was justified in holding that the claim of the assessee though not admissible within the provisions of s. 80P(2)(v) but is admissible under s. 80P(2)(a)(iii) ', (int) 4 => '<p>(iii) Whether, on the facts and in the circumstances of the case, the Tribunal was justified in deleting interest under s. 217 ', (int) 5 => '<p>(iv) Whether, on the facts and in the circumstances of the case, the Tribunal was justified in deleting interest under s. 217 ', (int) 6 => '<p>(v) Whether, on the facts and in the circumstances of the case, Tribunal was justified in directing the Assessing Officer to verify the claim and to allow it the payment of sales-tax, central sales-tax, and entry-tax has been made before filing the returns under s. 139(1) even when the proviso was introduced w.e.f. 1st April, 1988, and not for the earlier years ', (int) 7 => '<p>(vi) Whether, on the facts and in the circumstances of the case, Tribunal was justified in deleting the penalty amounting to Rs. 1,30,000 on the ground that the foundation of levy of penalty does stand even when the Department has not accepted the same ?'', (int) 8 => '<p>2. We have heard learned senior standing counsel for the Revenue. The assessee involved in these case is a co-operative society. The assessment years are during the period 1981 to 1985. Questions 1 and 2 are practically a repetition of the same question. Question No. 4 is a repetition of question No. 3. Therefore, the question No. 4 is deleted. Questions 5 and 6 are renumbered as question Nos. 4 and 5.', (int) 9 => '<p>3. The assessee is a co-operative society whose members are cotton growers. The society has been established to help the members in the matter of ginning and pressing cotton and finding market for the processed cotton. The society charges fee for ginning and pressing and also collects a fee for assessing the marketing operations from members. The society contended that it is engaged in marketing of agricultural produce of its members and also processing the agricultural produce of its members and, therefore, it is entitled for deduction of the whole of amount of profit and gains of business attributable to such activities from the assessable income under s. 80P(2) of the Act. The Assessing Officer (AO) negatived this claim on the ground that s. 80P(2)(v) can be invoked only where the processing is done without the aid of power and since processing is done by the assessee with the aid of power, deduction cannot be granted. The appellate authority and the Tribunal took the view that deduction has to be granted under s. 80P(2)(iii) of the Act since the society is engaged in marketing of agricultural produce of its members. It is this decision which has given rise to question Nos. 1 and 2. Question No. 3 is incidental to the answers to question Nos. 1 and 2.', (int) 10 => '<p>4. Sec. 43B of the Act states, inter alia, that where sales-tax, central sales-tax and entry-tax is alleged to be paid, deduction is to be given only on actual payment and not on the basis of subsistence of liability. The AO held that payment is not proved and deleted deduction. Tribunal directed him to enquire under the question as to what extent payment has been made and to give deduction to the actual payment made. This decision has led to question No. 4. Question No. 5 is incidental to the answers to other questions.', (int) 11 => '<p>5. The order of the Tribunal makes it abundantly clear that deduction is granted in regard to profits from the ginning and pressing operation only because the society is engaged in marketing of agricultural produce of its members. This is under s. 80P(2)(iii) of the Act. The condition that processing shall be done without the aid of the power, seen in sub-cl. (v), is not a condition precedent with reference to sub-cl. (iii). This matter has been clarified by the Supreme Court with reference to the provisions of the Act as they stood prior to 1968 amendment [see Broach Distt. Co-operative Cotton Sales Ginning & Pressing Society Ltd. vs . CIT : [1989]177ITR418(SC) ]. In regard to the controversy arising in these cases, the amendment has not made any practical difference. The question is, therefore, covered by the decision of the Supreme Court and cannot be said to arise.', (int) 12 => '<p>6. The Tribunal has not granted deduction to the assessee under s. 43B of the Act in regard to the alleged payments of sales-tax, central sales-tax and entry-tax. The Tribunal only directed the AO to verify whether payment has been made and if satisfied to grant deduction. This part of the decision of the Tribunal cannot be said to have given rise to any question of law. Other questions are incidental to the alleged main questions and do not require independent consideration.', (int) 13 => '<p>7. For the reasons indicated above, we hold that no question of law calling for stating the case and making a reference arises for consideration in these cases. Applications are accordingly dismissed.<p>', (int) 14 => '<p>' ) $paragraphAfter = (int) 1 $cnt = (int) 15 $i = (int) 14include - APP/View/Case/amp.ctp, line 144 View::_evaluate() - CORE/Cake/View/View.php, line 971 View::_render() - CORE/Cake/View/View.php, line 933 View::render() - CORE/Cake/View/View.php, line 473 Controller::render() - CORE/Cake/Controller/Controller.php, line 963 Dispatcher::_invoke() - CORE/Cake/Routing/Dispatcher.php, line 200 Dispatcher::dispatch() - CORE/Cake/Routing/Dispatcher.php, line 167 [main] - APP/webroot/index.php, line 109