The Commissioner Of Income Tax, Haryana, Rohtak v. M/S. Surjit & Surinder Investment (P) Limited, Yamunanagar

I.T. C. No. 83 of 1991 1 In the High Court of Punjab & Haryana at Chandigarh I.T. C. No. 83 of 1991 Date of decision : 18.8.2008 The Commissioner of Income Tax, Haryana, Rohtak ..... Petitioner vs M/s. Surjit & Surinder Investment (P) Limited, Yamunanagar ..... Respondent Coram:Hon'ble Mr. Justice Hemant GuptaHon'ble Mr. Justice Rajesh Bindal Present: Mr. Yogesh Putney, Advocate, for the petitioner. Mr. Akshay Bhan, Advocate, for the respondent. Rajesh Bindal J. The revenue has filed the present petition under Section 256 (2)of the Income Tax Act, 1961 (for short, 'the Act') seeking a direction to theIncome Tax Appellate Tribunal, Chandigarh Bench, Chandigarh (for short,'the Tribunal') to refer the following substantial questions of law arising outof order passed by it in I.T.A. No. 425 of 1986 for the assessment year1981-82:- i)Whether on the facts and in the circumstances of thecase, the Tribunal was right in law in holding that theorder of the ITO has merged with the order of the CIT(A) and Commissioner of Income-Tax was notcompetent to review such orders u/s 263 of the I.T.Act, 1961 ?case, the Tribunal was right in law in holding that theorder of the ITO has merged with the order of the CIT(A) and Commissioner of Income-Tax was notcompetent to review such orders u/s 263 of the I.T.Act, 1961 ? ii)Whether the facts and in the circumstances of thecase, the Tribunal was right in law in holding that theassessee company was doing mining activities insteadof hiring out machinery to M/s. G.S. Atwal and Co.case, the Tribunal was right in law in holding that theassessee company was doing mining activities insteadof hiring out machinery to M/s. G.S. Atwal and Co. I.T. C. No. 83 of 1991 2 (GUA) who actually entered into an agreement withthe Eastern Coalfields Ltd.?” Briefly, the facts as stated in the present petition are that theassessee is a private limited company who was carrying out the job as sub-contractor as assigned by M/s. Eastern Coalfields Limited to M/s G. S.Atwal and Company. Initially, the claim of the assessee for the investmentallowance under Section 32-A of the Act was rejected, however, in appealthe Commissioner of Income Tax (Appeals) accepted the same. The casewas taken up in revision by the Commissioner under Section 263 of the Actfinding the order passed by the Assessing Authority to be erroneous as faras the grant of investment allowance to the assessee is concerned. Aggrieved against the order passed by the Commissioner underSection 263 of the Act, the assessee went in appeal before the Tribunal.Accepting the contention raised by the learned counsel for the assessee, theTribunal held that once an order of assessment was subject matter of appeal,the same merges with the order passed by the Appellate Authority and anyrevision of such an order was not possible by the Commissioner. As far asthe issue on merit is concerned, the Tribunal recorded a finding of fact thatthe assessee was, in fact, involved in the business of mining. The prayer for reference of the questions of law was rejected bythe Tribunal on the ground that the same were not worth reference to thiscourt for opinion, namely, as far as the issue of exercise of power underSection 263 of the Act was concerned, the same was in conformity with law,as far as the merit was concerned, a finding of fact was recorded about thebusiness being carried on by the assessee. The prayer for reference of the questions of law was rejected bythe Tribunal on the ground that the same were not worth reference to thiscourt for opinion, namely, as far as the issue of exercise of power underSection 263 of the Act was concerned, the same was in conformity with law,as far as the merit was concerned, a finding of fact was recorded about thebusiness being carried on by the assessee. Learned counsel for the revenue though made strenuous effortsto make out a case for direction to the Tribunal for reference of thequestions of law, as referred to above, however he could not succeed. As faras the power under Section 263 of the Act is concerned, we do not find thatany illegality was committed by the Tribunal which is required to beconsidered by this court on the question of law sought to be referred. As faras the issue regarding grant of investment allowance to the assessee isconcerned, we find that a finding of fact has been recorded in favour of theassessee. The material available on record in the form of agreements is notsufficient to hold that the finding so recorded is perverse in any manner. I.T. C. No. 83 of 1991 3 In our opinion, no question of law arises in this petition foropinion of this court. Accordingly, the petition is dismissed. ( Rajesh Bindal) Judge 18.8.2008vs. (Hemant Gupta)Judge