ORDER
A.M. Sapre, J.
This is a reference, made under section 256(1) of the Income Tax Act at the instance of revenue (CIT) by the Tribunal (ITAT) by sending a statement of case in R.A. No. 101/Ind./ 95, dated 31-1-2000 which arises out of an order dated 23-1-1990, passed by ITAT in ITA No. 314/Ind./1992 (Annexure-D) to answer following question of law said to arise out of the order, dated 23-1-1990:
“Whether on the facts and in the circumstances of the case, the ITAT was justified in holding that the amount of Rs. 4,48,819 received by the assessee as subsidy was receipt of capital nature?”
2. Heard Shri R.L. Jain with Ku. Mandlik, learned counsel for revenue and Shri R. Sarda, learned counsel for the assessee.
3. We have heard learned counsel for the parties and perused statement of case drawn by Tribunal dated 31-1-2000 together with 4 Annexures accompanied by the statement of case.
4. Having heard learned counsel for the parties and having perused entire paper book which as observed supra, contains statement of case and 4 Annexures, we have formed an opinion that it is not possible for this reference court to answer the question of law referred to this court supra and hence, we decline to answer the same on merits.
5. The question, whether a particular amount received by an assessee from State or any agency of State by way of what we call “subsidy” can be treated as capital receipt or revenue receipt can only be decided on the basis of nature of subsidy received by an assessee. In other words, in order to decide the true nature of amount received by an assessee, the only document that is required for examination is the scheme of subsidy pursuant to which an amount in question was disbursed by the State to an assessee. Indeed, their Lordships of Supreme Court while deciding this very question in the case of Sahni Steel & Press Works Ltd. v. CIT (1997) 228 ITR 253 has laid down this very proposition.
6. We are constrained to note that while drawing the statement of case, the Tribunal has neither given the details of the scheme nor annexed the copy of scheme styled as “grant-in-aid Rules of Incentative Planning for Construction of New Cinema Houses in M.P. 1982.” The Tribunal has simply mentioned the name of scheme and further mentioned two clauses of scheme (Rule 7/8(c)). Even the relevant clauses which have a hearing were not quoted in verbatim so as to enable this court to at least read for interpreting the true nature of scheme. While drafting the statement of case, the Tribunal has simply extracted in verbatimt he finding of Tribunal on the issue rather than to quote the relevant and silent feature of scheme which really fell for interpretation to decide the true character of amount. In other words, what was relevant was neither stated nor filed (i.e., Scheme) and what was not of much relevance has been given due prominence, i.e., quoting of the verbatim para of Tribunal’s order. In fact, when the order of Tribunal itself is annexed as Annextire D to statement of fact, there arise no need to extensively quote the para after para in statement of case because this court can read these paras from the order itself which is made a part of statement of case.
7. That apart, even the order of assessing officer CIT (Appeals) and Tribunal passed in first and second appeal (Annexures A to D) enclosed as part of statement do not refer much less in verbatim the clauses of scheme to enable us to take note of it for answering the question referred.
8. We are also constrained to observe the manner in which the appeal was decided by the Tribunal (Annexure-C). Mere perusal of order (Annexure C), dated 16-8-1995 would indicate that the learned members only referred to and relied upon some earlier decisions of Tribunal rendered in IT Appeal Nos. 486 and 487 /Ind/92, dated 30-9-1994 (Ajanta Talkies v. ACDT) and ITA No. 865/Ind/87 – Rajshree Cinema. It is essentially on the basis of view taken in these cases: the Tribunal seemed to have decided the issue in favour of assessee. The Tribunal while deciding the appeal did not take care to even refer to the terms/ conditions of scheme, its manner, etc., nor did the Tribunal while drawing a statement of case enclosed the true copies of two judgments delivered by them on which they had placed reliance for deciding the question. Indeed, when the Tribunal decide any question by placing reliance on its earlier decision, then either the Tribunal in the order refer in extension the view taken in that case and/or send a copy of the order as a part of statement of case to this court. It is only then, this court in its advisory jurisdiction can examine in its right perspective, whether Tribunal was right in deciding the question. In the absence of any of these material issues being totally missing, we cannot countenance with the casual manner in which the Tribunal has exercised its second appellate jurisdiction as also reference jurisdiction under section 256(1) of the Act.
9. The jurisdiction of High Court under section 256(1) of the Income Tax Act is well defined by series of judicial authorities rendered by Supreme Court and High Courts. This court cannot travel outside the statement of case, referred to this court by the Tribunal for answering the question referred. In other words, this court has to answer the question only on the basis of what is contained in statement of case and the documents enclosed alongwith the statement of case. Parties cannot be allowed to file any documents in reference proceedings in the High Court for the first time. All the documents must be a part of statement of case drawn as per rules framed for this purpose.
10. In our considered opinion, in the absence of Scheme, which is the basic document for deciding the true nature of receipt and also in the absence of copies of several unreported decisions of Tribunal on which the finding is reached by the Tribunal on the question, this court feel that it is not possible to answer the question referred to this court by the Tribunal oil merits. This court does possess the power to decline to answer the question referred to this court if the aforesaid infirmities are noticed in the statement of case. We, therefore, take recourse to such power though with reluctant and decline to examine the question referred.
11. Before parting with the case, we wish to observe that in future the Tribunal would ensure drawing up of statement of case with care and caution keeping in view the requirement of rules framed for this purpose under the Act and also keeping in view the observations made by this court supra The Tribunal will also ensure that all relevant documents which are referred to in the orders of assessing officer. CIT(A) and Tribunal including those unreported decisions on which the Tribunal usually places reliance for deciding the appeals are made part of the statement of case. In other words, while maintaining the brevity, in drafting the statement of cases all relevant material should be enclosed alongwith the statement of cases. Needless to say that since section 256(1) of the Act has since been deleted, and no more remains on statute book, this caution is to be taken note of only in those cases where provisions are still made applicable due to pendency of some matters under section 256(1) or 256(2) ibid as the case may be.
No costs.