Commissioner of Income Tax vs Indernarayan Jhalani

A.M. Sapre, J.—This is an application made by the Revenue (Commissioner of income tax) u/s 256(2) of the Income Tax Act, 1961, consequent upon the dismissal of his application made u/s 256(1) of the Act in R.A No. 165/Ind/98 by order dated November 30, 1998, which in turn arise out of an order dated July 27, 1998, in I.T.A. No. 646/Ind/94.

Heard Shri R.L. Jain, learned senior counsel with Ku. V. Mandlik, learned Counsel for the Revenue and Shri Nazir Singh learned Counsel for the assessee.

Having heard learned Counsel for the parties and having perused the record of the case, we are inclined to allow this application.

The question involved in this case relates to the assessment year 1992-93. It pertains to the interpretation of Section 80HHC(3), read with the powers of the Assessing Officer u/s 143(1)(a) and Section 154 of the Act while claiming certain deductions.

Mere perusal of the impugned orders passed by the Assessing Officer, the Commissioner of Income Tax (Appeals) and the Tribunal would indicate that the question of law which is equally referable does arise out of the controversy and, hence, the same should have been referred to this Court for being answered on the merits u/s 256(1) of the Act. Since we are satisfied that the question of law arise in the case and the same need to be answered, we do not wish to burden our order by narrating the detail facts. It is for the Tribunal to draw a statement of case and send the same to this Court to enable this Court to answer the following questions of law said to arise out of the order passed by the Tribunal in appeal:

Whether, on the facts and in the circumstances of the case, the provisions of Section 80HHC(3) read with the definition of turnover did not entitle the Assessing Officer to make any prima facie adjustment u/s 143(1)(a) in relation to deductions falling u/s 80HHC?

Whether, on the facts and in the circumstances of the case, the assessee is entitled to claim the relief u/s 80HHC when besides export, the assessee was also having income from domestic sales in his business?

As observed supra, the aforementioned two questions do arise out of the order of the Tribunal and being referable in nature within the meaning of Section 256(1) of the Act, the same has to be referred to this Court. Let the statement of case be drawn by the Tribunal and the same be sent to this Court for being answered on the merits. It be done within three months. Needless to observe the Tribunal while referring the case to this Court would take care to send legible copies of orders/documents which are capable for reading by this Court.

Application is thus, allowed.

No costs.