Commissioner of Income Tax vs Dhiraj Kumar and Co.

A.R. Tiwari, J.—The Commissioner of Income Tax, Bhopal, has filed this application u/s 256(2) of the Income Tax Act, 1961 (for short the "Act"), seeking a direction to the Income Tax Appellate Tribunal, Indore, to state the case and refer the undernoted question of law as proposed, arising out of the order dated July 12, 1991, passed in ITA No. 99/Ind. of 1990, for our opinion :

"Whether, on the facts and in the circumstances of the case, the Income Tax Appellate Tribunal was justified in law in holding that the amended provisions of Section 43B were applicable to the assessment year 1985-86 when the said amendment was effective from April 1, 1988 ?"

The non-applicant assessee derived income from adat in oil-seeds, etc., as also from the business on own account. It filed the return. In response to the notice u/s 143(2) of the Income Tax Act, the assessee produced the account books and filed the details and submitted explanations. The order of assessment for the assessment year 1985-86 was passed u/s 143(3)/143(2)(a). The assessee filed Appeal No. IT-218/88-89/383 before the Commissioner of Income Tax (Appeals). The appeal was allowed in part. The assessee then filed a second appeal against the part of the order rejecting the contentions of the assessee. That appeal was registered as ITA No. 99/Ind. of 1990. The appeal was dismissed on July 12, 1991. Aggrieved, the applicant filed an application u/s 256(1) of the Act which was registered as R. A. No. 354/Ind. of 1991. That application was rejected on July 15, 1992. Thereafter, the applicant has filed this application u/s 256(2) of the Act.

We have heard Shri D.D. Vyas, learned counsel for the applicant.

The Tribunal rejected the application u/s 256(1) of the Act on the conclusion that the question is not a referable question of law for the reasons stated in its order dated February 17, 1992, in R. A. No. 157/Ind. of 1991, arising out of I.T.A. No. 1151/Ind. of 1988 in the case of Mantri Bros. v. ITO.

The Tribunal found that the provision of Section 43B was amended with effect from April 1, 1988, and that the assessment year in question was 1985-86. The Tribunal, however, found that the amended provision was applicable to the assessment year 1985-86. Counsel for the applicant was unable to show that the amended provision was not retrospective in operation. Commissioner of Income Tax Vs. Polar Fan Industries Ltd., and Commissioner of Income Tax Vs. Chandulal Venichand, clinch and conclude the point.

So far as the question of subsidy is concerned, the point stands concluded by the judgment in COMMISSIONER OF Income Tax Vs. BHANDARI CAPACITORS PRIVATE LTD., .

In view of the facts and circumstances of the case, we are not satisfied that the question as proposed is a question of law required to be answered by us.

In the result, we reject the application, but without any order as to costs.