Commissioner of Income Tax vs Gargaons Exports Pvt. Ltd.

A.P. Misra, J.—The applicant has moved this application u/s 256(2) of the Income Tax Act, 1961, and seeks reference of the following questions to this court :

"1. Whether, on the facts and in the circumstances of the case, the Tribunal was, in law, justified in allowing the assessee''s claim of deduction under Sections 80HH and 80-I ?

Whether, on the facts and in the circumstances of the case, the Tribunal was in law justified in treating the assessee as an industrial company?"

Heard learned counsel for the Revenue and also learned counsel appearing for the respondent. The only question involved in this case is about the admissibility of the claim u/s 80HH and Section 80-I of the Income Tax Act, 1961. The Income Tax Officer in his assessment order has observed that the conditions stipulated for a eligibility of claim under the aforesaid Sections 80HH and 80-I of the said Act are not fulfilled in the assessee''s case. It is further observed that against the relief allowed by the appellate authority in the past year, the Department has filed the appeal before the Income Tax Appellate Tribunal. The appellate authority, relying on the decision of Addl. Commissioner of Income Tax Vs. A. Mukherjee and Co. (P.) Ltd., , held the assessee to be entitled to deduction under the said sections. In the Departmental appeal for the assessment year 1983-84 before the Income Tax Appellate Tribunal, it was held that the appeal for the assessment year 1982-83 had been set aside to the file of the Commissioner of Income Tax (Appeals) for being disposed of afresh after affording opportunity to both the parties with certain observations/directions set aside the case for 1983-84 was also made as identical points were involved. The present case pertains to the assessment year 1986-87 (sic). The argument on behalf of the Revenue is that since no order has been passed as yet by the appellate authority for the assessment years 1982-83 and 1983-84, the Tribunal erred in allowing the assessee''s claim and dismissing the Departmental appeal. This argument of the Revenue is unsustainable in view of the finding recorded by the Tribunal while rejecting the reference application of the petitioner and the said finding is quoted as under :

"The facts contained above were neither brought to the notice of the Tribunal nor considered by it. A reference u/s 256 can be made to the High Court on the facts admitted and/or found by the Tribunal. We accordingly decline to make a reference to the High Court on the basis of the facts not found by the Tribunal."

In view of this finding, the present application has no merit. No question of law arises out of the Income Tax Tribunal''s order and as such the application u/s 256(2) is hereby rejected. Costs on parties.