Commissioner of Income Tax vs Om Prakash Garg

A.R. Tiwari, J.—These three Misc. Civil Cases, concerning the same assessee and the same assessment year, i.e., 1982-83, are heard as connected matters and are being disposed of by this common order. Briefly stated, the facts of the case are that the assessee carried on contract business. The assessee filed the return. The ITO disallowed the claim of depreciation of Rs. 10,000 on car and also disallowed the claim of loss. In appeal before AAC, the appellate authority issued an enhancement notice and finally assessed the profit from contract business. He also confirmed the disallowance of loss. So far as the car is concerned, he allowed depreciation of Rs. 7,500. Against this appellate order, the assessee filed IT Appeal No. 1214 (Indore) of 1985. That appeal was dismissed on 22-12-1989. The assessee then filed Misc. Application No. 33 (Indore) of 1990 arising out of the order passed in the aforesaid appeal. That application was allowed on 27-7-1990. The department then filed Misc. Application No. 3 (Ind.) of 1990 on the ground that the order of the Tribunal dated 27-7-1990 was erroneous on merit. The Tribunal rejected this Misc. Application on 9-9-1991 holding that the application did not fall within the ambit of rectificatory jurisdiction. The department then filed applications u/s 256(1) of the income tax Act, 1961 (''the Act''), which were rejected. Thereafter the department filed applications u/s 256(2) of the Act. Misc. Civil Case No. 64 of 1992 pertains to the order passed on R.A. No. 185 (Ind.) of 1990 arising out of the order passed in M.A. No. 33 (Ind.) of 1990. Misc. Civil Case No. 561 of 1992 pertains to the order passed on 25-3-1992 in R.A. No. 9 (Ind.) of 1992. Misc. Civil Case No. 562 of 1992 pertains to the order passed on 25-3-1992 in R.A. No. 431 (Ind.) of 1991.

We have heard Shri A.M. Mathur, the learned senior counsel with Shri A.K. Shrivastava, for the applicant/department and Shri D.D. Vyas, the learned counsel for the non-applicant/assessee, in these Misc. Civil Cases.

It emerges from the record that IT Appeal No. 1214 (Ind.) of 1985 for the assessment year 1982-83 was the appeal filed by the assessee which was dismissed. Thereafter the assessee filed M.A. No. 33 (Ind.) of 1990 which was allowed on 27-7-1990. The department then filed M.A. No. 3 (Ind.) of 1990 which was dismissed on 9-9-1991.

In Misc. Civil Case No. 64 of 1992, the following questions are proposed:-

" 1. Whether, on the facts and in the circumstances of the case, the Tribunal was justified in recalling its order holding that the material facts pointed out by the assessee in his miscellaneous application were not considered by the Tribunal, especially when all the facts pointed out by the Tribunal were before the Tribunal and have been considered by them in that order?

Whether the Tribunal was correct in law on facts in holding that there is a mistake in its order dated 22-12-1989 when there is no such mistake apparent from the record and all the facts were considered by them in passing the order dated 22-12-1989 ?

Whether the recall of the order by the Tribunal for rehearing does not amount to review of its own order ?"

In Misc. Civil Case No. 561 of 1992, the following questions are proposed:-

"(i) Whether, on the facts and in the circumstances of the case, the Tribunal is justified in law in reviewing its own order on the basis of assessee''s Misc. Application u/s 254(2) when the issues involved were wholly examined and decided by it and there was no mistake apparent from record ?

(ii) Whether, on the facts and in the circumstances of the case, the Tribunal was justified in deciding the issues afresh when the application of the department in RA. u/s 256(1) is pending?

(iii) Whether, on the facts and in the circumstances of the case, it is within the scope of powers of Tribunal to reverse its earlier order on reconsideration of same evidence and material ?

(iv) Whether the Tribunal is empowered to sit in judgment over its own orders ?

(v) Whether, on the facts and in the circumstances of the case, the order of the Tribunal is not arbitrary inasmuch as the adoption of G.P. @ 10 per cent when in the order dated 22-12-1989 a clear finding of fact had been given that the G.P. of 15 per cent applied by the AAC, was reasonable ?

(vi) Whether, on the facts and in the circumstances of the case, the Tribunal was justified in remitting the matter to the Assessing Officer for verification whether the receipts of Rs. 1,40,323 were already included in the receipts for the assessment year 1980-81 when in the order dated 22-12-1989 a clear finding of fact had been given that the receipts pertained to the assessment year 1982-83 ?

(vii) Whether, on the facts and in the circumstances of the case, the order of the Tribunal allowing deduction of Rs. 22,500 for loss on sale of crusher is not arbitrary, when no reasons for allowing the claim had been given ?"

In Misc. Civil Case No. 562 of 1992, the following questions are proposed:-

"(i) Whether, on the facts and in the circumstances of the case, the Tribunal was empowered to recall its earlier order 1214 Ind 85 dated 26-12-1989 for fresh adjudication ?

(ii) Whether there was any material before the Tribunal to accept the application u/s 254(2) of the assessee against its order dated 22-12-1989 justifying recalling the said order ?

(iii) Whether, on the facts and in the circumstances of the case, recalling the said order by the Tribunal does not tantamount to giving way to review its own order and whether the Tribunal had such power ?"

So far as the application against the order passed in M.A. No. 3 (Ind.) of 1990 is concerned, no reference is tenable. That is the position of law laid down in Jai Bharat Enterprises v. CIT [1988] 173 ITR 132/ 40 Taxman 94 (Kar.) and Popular Engg. Co. v. CIT [1983] 140 ITR 398/ 13 Taxman 454 (MP). When the Misc. Application for rectification is dismissed, no application for reference either u/s 256(1) or u/s 256 (2) is tenable in law.

So far as the order passed on M.A. No. 33 (Ind.) of 1990 is concerned, we find that the conclusion of the Tribunal is based on appreciation of facts and does not give rise to any question of law.

We have considered the questions presented and projected in all these three Misc. Civil Cases and find that there is no referable question of law.

In CIT v. Ashoka Marketing Ltd. [1976] 103 ITR 543 (SC) and in CIT v. Kotrika Venkataswamy & Sons [1971] 79 ITR 499 (SC), it is held that the conclusion based on appreciation of facts does not give rise to any question of law.

Even otherwise it is not disputed that the amount involved in these cases, for the same year, is only in the vicinity of Rs. 3,000. It is held in CIT v. K.A. Patch AIR 1987 SC 1168 that the Court is not required to answer the question when the amount involved is small. That exactly is the position here. The matter is about 14 years old.

In view of the aforesaid position, we dismiss these three Misc. Civil Cases as devoid of merit but with no order as to costs.

Counsel fee for each side in each case is, however, fixed at Rs. 750, if certified. Retain this order in the record of Misc. Civil Case No. 64 of 1992 and place its copy each in the records of connected Misc. Civil Cases, as particularised above.