IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH. I.T.R. No.51 of 1998 Date of decision: 16.09.2008 The Commissioner of Income-tax, Haryana, Rohtak. -----Applicant Vs. M/s Porrits & Spencer (Asia) Ltd., Faridabad. -----Respondent CORAM:- HON'BLE MR JUSTICE ADARSH KUMAR GOEL HON'BLE MR JUSTICE RAKESH KUMAR GARG Present: Mr. Yogesh Putney, Sr. Standing Counsel for the revenue. Mr. A.C. Jain, Advocate for assessee. ----- ORDER: Following question of law has been referred for opinion of this Court by the Income Tax Appellate Tribunal, Delhi Bench ‘C’, New Delhi arising out of I.T.A. No.9226/Del/96 in respect of assessment year 1984-85:- “Whether, on the facts and in the circumstances of the case, the Hon’ble ITAT was right in law in holding that the computing the disallowance u/s 40A(5) of the following expenses the provisions of rule 3(c) (ii) are applicable: Salary wages and bonus paid to personal servants engaged by the employees of the assessee?” I.T.R. No.51 of 1998 The Tribunal has recorded the following finding:- “11. The last ground in the appeal pertains to the valuation of the wages paid to servants provided to the employees of the assessee company for purposes of making disallowance under section 40-A(5). The CIT (Appeals) rejected the claim following his order for the assessment year 1983-84 which we have already adjudicated upon earlier in the revenue’s appeal. The assessee did not come up on appeal against the decision in the earlier assessment year. Before us the learned counsel placed reliance on the decision of the Tribunal dated 27th February, 1997 (supra) contending that an identical issue had been decided in the assessee’s favour vide para 5 of the said order. In the said para 5 we note that there is a reference to yet an earlier order of the Tribunal for assessment year 1986-87 a copy of which has not been filed before us. In order to be fair to both the parties, we would restore the matter back to the file of the assessing officer asking him to consider the assessee’s claim in the light of any judgements of the Tribunal, which are in its favour, more so, those which have been passed after the date of the order of the Commissioner of Income-tax (Appeals) which is 10.10.1990.” Learned counsel for the revenue has not been able to show that the finding of the Tribunal on the said issue for the assessment year 1983-84 was challenged nor any reason has been shown to take a different view for the year in question. In these circumstances, the view taken by the Tribunal cannot be held to be erroneous. Accordingly, the 2 I.T.R. No.51 of 1998 question is answered against the revenue and in favour of the assessee. ( ADARSH KUMAR GOEL ) JUDGE September 16, 2008 ( RAKESH KUMAR GARG ) ashwani JUDGE 3