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Judgment
Prakash Krishna, J.—This is an application u/s 256(2) of the Income Tax Act, 1961 for calling the following question for opinion of this Court:
Whether, on the facts and in the circumstances of the case, the IAC is correct in law in holding that the commission and subsidy paid to the cane growers formed part of the purchase price of the case and thus allowable for deduction u/s 37(1) of the Income Tax Act, 1961 ?
The facts of the case may be noticed in brief. The assessment order passed by the assessing authority was set aside by the Commissioner in exercise of jurisdiction u/s 263 of the Income Tax Act. The order of the Commissioner is dated March 23, 1990. The said order was the subject-matter of challenge before the Tribunal at the instance of the assessee. The Tribunal by the order dated November 26, 1990, has set aside the order of the Commissioner dated March 23, 1990. It appears that the Assessing Officer passed the assessment order in pursuance of the order passed by the Commissioner on March 23, 1990. The matter was ultimately carried to the Income Tax Appellate Tribunal and the Income Tax Appellate Tribunal by the order dated January 13, 1997 upheld the order passed by the assessing authority holding that the assessment order dated March 25, 1992 passed by the Assessing Officer is without jurisdiction. Against the said order of the Tribunal the present reference application has been filed.
Heard Sri A. N. Mahajan, learned standing counsel for the Revenue and Sri S. D. Singh for the assessee.
We find no illegality in the order of the Tribunal. Obviously, when the order dated March 23, 1990 passed by the Commissioner in exercise of original jurisdiction has been set aside, there was no occasion for the Assessing Officer to pass the fresh assessment order on March 25, 1992 by placing reliance upon the order dated March 23, 1990. Even otherwise also he has been informed that so far as the proposed question is concerned, the same question is concluded in favour of the assessee and against the Department by this Court in ITR No. 48 of 1992 inter parties by the judgment dated March 15, 2007.
The application is dismissed accordingly.