Commissioner of Income Tax vs Malwa Vanaspati and Chemical Co. Ltd.

A.M. Sapre, J.—The decision rendered in this reference application shall also govern the disposal of other two references being IT Ref. No. 69 of 1997 (CIT v. Vippy Solvex Products Ltd., Dewas) and IT Ref. No. 70 of 1997 (CIT v. Vippy Solvex Products Ltd., Dewas) because in all these reference applications, common question of law is involved.

This is an application made by the Revenue--CIT u/s 256 of the IT Act consequent upon dismissal of their application made u/s 256(1) of the IT Act by the Tribunal vide its order dt. 19th Dec., 1996 in RA Nos. 50 to 52/Ind/1996 which in turn arise out of ITA Nos. 593 to 595/Ind/1992.

In the opinion of Tribunal, the question of law proposed by the Revenue does not really arise and in any event according to Tribunal, it being a question of fact and having been answered by the decision of the High Court, the same need not be referred to this Court u/s 256(1) of the IT Act. In this view, the application was dismissed. As a consequence of the dismissal of application, the Revenue has filed this application by taking recourse to the provisions of Section 256(2) requesting this Court to call for the question proposed by the Revenue in their application.

Following question of law is proposed by the Revenue for being called from the Tribunal to answer by this Court u/s 256(1) of the IT Act.

The question proposed is :

"Whether, on the facts and in the circumstances of the case, the learned Tribunal was justified in law in holding that intimation u/s 143(1)(a) cannot be sent after issuance of notice u/s 143(2) of the IT Act ?"

Heard Shri R.L. Jain, learned senior counsel with Ku. Mandlik for the petitioner, and Shri S.C. Goyal for the respondent.

Having heard learned counsel for the parties and having perused the record, we are of the opinion that the question proposed by the Revenue stands already answered by the authoritative pronouncement of the Supreme Court in the case of Commissioner of Income Tax Vs. Gujarat Electricity Board, as also by decision of this Court in the case of Commissioner of Income Tax Vs. Regional Soyabean Products Co-operative Union Limited, .

If in these two decisions, their Lordships held that once a notice u/s 143(2) of the Act has been issued, then in that event no intimation can be sent u/s 143(1)(a) ibid by AO. Indeed this is what their Lordships of the Supreme Court held in the case of Gujarat Electricity Board (supra) while answering the question against the Revenue and in favour of the assessee :

"It is not open to the Revenue to issue intimation u/s 143(1)(a) of the IT Act, 1961, after notice for regular assessment is issued u/s 143(2). The legislature intended that where the summary procedure u/s 143(1) has been adopted, there should be scope available for the Revenue, either suo motu or at the instance of the assessee, to make a regular assessment u/s 143(2). The converse is not available : a regular assessment proceeding having been commenced u/s 143(2), there is no need for a summary proceeding u/s 143(1)(a)."

In our opinion in view of the aforesaid decision rendered by their Lordships of the Supreme Court in Gujarat Electricity Board''s case (supra), the question proposed by the Revenue really does not arise for being answered by this Court in exercise of the powers conferred u/s 256(1) of the Act. Indeed there is no controversy now which really survives for being debated before the taxing authorities or any Court in the country when the law is settled by the Supreme Court, except to follow the same in letter and in spirit.

In this view of the matter, we find no substance in this application which is dismissed. In view of the aforesaid, all other questions proposed by the Revenue also need not be called as they also do not arise out of the order passed by the Tribunal. No order as to costs.