IN THE HIGH COURT OF GUJARAT AT AHMEDABAD SUR TAX REFERENCE No 3 of 1993 For Approval and Signature: Hon'ble MR.JUSTICE M.S.SHAH and Hon'ble MR.JUSTICE K.A.PUJ ============================================================ 1. Whether Reporters of Local Papers may be allowed : NO to see the judgements? 2. To be referred to the Reporter or not? : NO 3. Whether Their Lordships wish to see the fair copy : NO of the judgement? 4. Whether this case involves a substantial question : NO of law as to the interpretation of the Constitution of India, 1950 of any Order made thereunder? 5. Whether it is to be circulated to the concerned : NO Magistrate/Magistrates,Judge/Judges,Tribunal/Tribunals? @ COMMISSIONER OF SALES Versus CADILA LABORATORIES PVT.LTD. -------------------------------------------------------------- Appearance: 1. SUR TAX REFERENCE No. 3 of 1993 MR MANISH R BHATT for Petitioner No. 1 SERVED BY RPAD - (N) for Respondent No. 1 -------------------------------------------------------------- CORAM : MR.JUSTICE M.S.SHAH and MR.JUSTICE K.A.PUJ Date of decision: 18/07/2002 ORAL JUDGEMENT (Per : MR.JUSTICE M.S.SHAH) In this reference at the instance of the revenue, the following question has been referred for our opinion in respect of assessment year 1983-84:- "Whether, the Appellate Tribunal is right in law and on facts in directing the I.T.O. to reduce capital on account of proportionate sum in respect of Chapter VIA deduction under Rule 4 of the second schedule of the Sur-tax Act?" 2. We have heard Mr Tanvish Bhatt, learned counsel for the applicant- revenue. Though served, none appears for the respondent- assessee. 3. The Assessing Officer while computing the capital carried out the proportionate deduction of Rs.3,95,825/witin the meaning of Rule 4 of the Second Schedule. This pertained to the deductions availed off by the assessee under Chapter VIA. The CIT (Appeals) relying on the decision of this Court in the case of CIT vs. Alembic Chemical Works Co. Ltd. 133 ITR 578 directed the Assessing Officer not to reduce the capital by the aforesaid sum of Rs.3,95,825/-. In appeal filed by the revenue, the Tribunal confirmed the order of the CIT following the decision of this Court in CIT vs. Alembic Chemical Works Co. Ltd. (supra). 4. At the hearing of this reference today, our attention is invited to the decision of the Apex Court in the Second ITO vs. Stumpp Schuele and Somappa P. Ltd. (1991) 187 IR 108 wherein the Apex Court approved the view taken by this Court in CIT vs. Alembic Chemical Works Co. Ltd. 133 ITR 578 amongst the decisions of many other High Courts. The aforesaid decision of the Apex Court has subsequently also been followed by this Court in Commissioner of Sur Tax/Income-tax vs. Atul Products Ltd. (1995) 211 ITR 788. Following the aforesaid decisions, our answer to the question referred for our opinion is in the affirmative i.e. in favour of the assessee and against the revenue. 5. The Reference accordingly stands disposed of with no order as to costs. (M.S. Shah,J) (K.A. Puj,J) zgs/-