Commissioner of Income Tax vs Continental Construction (P.) Ltd.

At the instance of the Revenue, the following question has been referred for the opinion of this court u/s 256(1) of the Income Tax Act, 1961 :

"Whether, on the facts and in the circumstances of the case, the Appellate Tribunal was right in holding that the assessed''s claim u/s 80J for the assessment year 1972-73 should be determined in the assessment year 1975-76 and allowed in that year ?"

Since there are lots of factual angles involved, we need not go into the factual aspects in detail. However, what seems to have appealed to the Tribunal is reflected in para. 6 of its order which reads as follows :

"We agree with learned counsel for the assessed that if the Revenue had any grievance against the direction issued by the Commissioner of Income Tax (Appeals) in his order dated January 20, 1979, it should have come in appeal against that order and the direction issued in that order cannot be agitated in an appeal against the order dated March 24, 1979. In the impugned order dated March 24, 1979, the direction given earlier on January 20, 1979, has only been reiterated. After the order dated January 20, 1979, of the Commissioner of Income Tax (Appeals), the Inspecting Assistant Commissioner had passed an order dated February 9, 1979, u/s 154 and a chart dated February 9, 1979, was issued wherein the deficiency for 1972-73 was not mentioned. It is too late now for the Revenue to contend that the direction given by the Commissioner of Income Tax (Appeals) in his earlier order dated January 20, 1979, is erroneous."

In view of the findings recorded by the Tribunal its conclusion cannot be faulted. Therefore, the question has to be answered in the affirmative, in favor of the assessed and against the Revenue. Learned counsel for the Revenue, on the other hand, submitted that if there has been a challenge to the order of the Commissioner of Income Tax (Appeals) contrary to what has been stated by the Tribunal, the position would be different. If this is so, the result of the appeal, if any, would be given effect to in accordance with law.