I.T. C. No. 83 of 1991 1
In the High Court of Punjab & Haryana at Chandigarh
I.T. C. No. 83 of 1991
Date of decision : 18.8.2008
The Commissioner of Income Tax, Haryana, Rohtak
..... Petitioner
vs
M/s. Surjit & Surinder Investment (P) Limited, Yamunanagar
..... Respondent
Coram: Hon'ble Mr. Justice Hemant Gupta
Hon'ble Mr. Justice Rajesh Bindal
Present: Mr. Yogesh Putney, Advocate, for the petitioner.
Mr. Akshay Bhan, Advocate, for the respondent.
Rajesh Bindal J.
The revenue has filed the present petition under Section 256 (2)
of the Income Tax Act, 1961 (for short, ‘the Act’) seeking a direction to the
Income Tax Appellate Tribunal, Chandigarh Bench, Chandigarh (for short,
‘the Tribunal’) to refer the following substantial questions of law arising out
of order passed by it in I.T.A. No. 425 of 1986 for the assessment year
1981-82:-
i) Whether on the facts and in the circumstances of the
case, the Tribunal was right in law in holding that the
order of the ITO has merged with the order of the CIT
(A) and Commissioner of Income-Tax was not
competent to review such orders u/s 263 of the I.T.
Act, 1961 ?
ii) Whether the facts and in the circumstances of the
case, the Tribunal was right in law in holding that the
assessee company was doing mining activities instead
of hiring out machinery to M/s. G.S. Atwal and Co.
I.T. C. No. 83 of 1991 2
(GUA) who actually entered into an agreement with
the Eastern Coalfields Ltd.?”
Briefly, the facts as stated in the present petition are that the
assessee is a private limited company who was carrying out the job as sub-
contractor as assigned by M/s. Eastern Coalfields Limited to M/s G. S.
Atwal and Company. Initially, the claim of the assessee for the investment
allowance under Section 32-A of the Act was rejected, however, in appeal
the Commissioner of Income Tax (Appeals) accepted the same. The case
was taken up in revision by the Commissioner under Section 263 of the Act
finding the order passed by the Assessing Authority to be erroneous as far
as the grant of investment allowance to the assessee is concerned.
Aggrieved against the order passed by the Commissioner under
Section 263 of the Act, the assessee went in appeal before the Tribunal.
Accepting the contention raised by the learned counsel for the assessee, the
Tribunal held that once an order of assessment was subject matter of appeal,
the same merges with the order passed by the Appellate Authority and any
revision of such an order was not possible by the Commissioner. As far as
the issue on merit is concerned, the Tribunal recorded a finding of fact that
the assessee was, in fact, involved in the business of mining.
The prayer for reference of the questions of law was rejected by
the Tribunal on the ground that the same were not worth reference to this
court for opinion, namely, as far as the issue of exercise of power under
Section 263 of the Act was concerned, the same was in conformity with law,
as far as the merit was concerned, a finding of fact was recorded about the
business being carried on by the assessee.
Learned counsel for the revenue though made strenuous efforts
to make out a case for direction to the Tribunal for reference of the
questions of law, as referred to above, however he could not succeed. As far
as the power under Section 263 of the Act is concerned, we do not find that
any illegality was committed by the Tribunal which is required to be
considered by this court on the question of law sought to be referred. As far
as the issue regarding grant of investment allowance to the assessee is
concerned, we find that a finding of fact has been recorded in favour of the
assessee. The material available on record in the form of agreements is not
sufficient to hold that the finding so recorded is perverse in any manner.
I.T. C. No. 83 of 1991 3
In our opinion, no question of law arises in this petition for
opinion of this court.
Accordingly, the petition is dismissed.
( Rajesh Bindal)
Judge
18.8.2008 (Hemant Gupta)
vs. Judge