IN THE HIGH COURT OF JUDICATURE AT BOMBAY IN THE HIGH COURT OF JUDICATURE AT BOMBAY IN THE HIGH COURT OF JUDICATURE AT BOMBAY ORDINARY ORIGINAL CIVIL JURISDICTION ORDINARY ORIGINAL CIVIL JURISDICTION ORDINARY ORIGINAL CIVIL JURISDICTION INCOME TAX APPEAL NO. 141 OF 2001 INCOME TAX APPEAL NO. 141 OF 2001 INCOME TAX APPEAL NO. 141 OF 2001 The Commissioner of Income-tax ...Appellant V/s. M/s.Shah Construction Co.Ltd. ...Respondent Mr.Vimal Gupta i/b. Mr.H.D. Rathod for the Appellant. Mr.S.P. Mehta i/b. M/s.S.P. Mehta & Co. for the Respondent. CORAM : SWATANTER KUMAR, C.J. AND CORAM : SWATANTER KUMAR, C.J. AND CORAM : SWATANTER KUMAR, C.J. AND V.M. KANADE, J. V.M. KANADE, J. V.M. KANADE, J. DATED : JUNE 24, 2008 DATED : JUNE 24, 2008 DATED : JUNE 24, 2008 P.C. :- P.C. :- P.C. :- 1. The present appeal is directed against the order of the Tribunal dated 17th October, 2000. Vide this order, the Tribunal relied upon the earlier decision of the Tribunal in the case of assessee itself for the year 1980-82 and 1982-82 wherein element of service charges was allowed and it, therefore, added to the income of the assessee. Challenging the order of the Tribunal, the following substantial question of law arises for consideration :- "Whether on the facts and in the circumstances of the case, the Tribunal was justified in law - 2 - in confirming the order of CIT(A) & holding that the service charges received by the assessee can not be included in the total income of the assessee?" 2. Admit. With the consent of the learned Counsel for the parties, we proceed the hearing of the matter on merits. 3. Contention raised on behalf of the revenue is that earlier decision of the Tribunal and the earlier orders in the case of the assessee was subject matter for consideration before a Division Bench of this Court in the case of ITR No.8 of 1991 R.A. No.1372/B/88 (The ITR No.8 of 1991 R.A. No.1372/B/88 (The ITR No.8 of 1991 R.A. No.1372/B/88 (The Commissioner of Income Tax, Bombay City V. V/s. Commissioner of Income Tax, Bombay City V. V/s. Commissioner of Income Tax, Bombay City V. V/s. M/s.Shah Construction Co.Ltd. M/s.Shah Construction Co.Ltd. M/s.Shah Construction Co.Ltd. wherein the Court clearly held that the service charges under the agreement was to be added to the income and also noticed that modification of the agreement dated 3rd June, 1980 subsequent to the accrual of the income was also not in dispute. While deciding the question of law in favour of the Revenue, we see no reason to take a view - 3 - different than the view taken by the Division Bench in the earlier case, therefore, not distinguishing the facts. The plea raised, in any case, ought to have been raised before the Tribunal which is evident from the order, was not raised. 4. Consequently, we accept the appeal. We answer the question in favour of the revenue. 5. Appeal is disposed of. CHIEF JUSTICE CHIEF JUSTICE CHIEF JUSTICE V.M. KANADE, J. V.M. KANADE, J. V.M. KANADE, J.