2009 (7) TMI 27 - HC - Income Tax

Revision Section 263 - it was provided that power under Section 263 of the Act could be exercised even if an order of assessment had been subject matter of appeal. The amendment was, on its terms, retrospective and covers every appeal, which may have been filed on or before or after 1.6.1988 and, thus, the present case was covered by the said amendment. Judgments of Hon ble the Supreme Court in Commissioner of Income Tax Vs. Shri Arbuda Mills Ltd. 2008 -TMI - 5650 - SUPREME Court and judgment of Bombay High Court in Commissioner of Income Tax Vs. Ratilal Bacharilal and sons 2008 -TMI - 9547 - BOMBAY High Court followed. - once order of assessment had been appealed against, the same can also be thereafter subjected to revision under Section 263 of the Act.

Summary

Issues:
1. Interpretation of Section 263 of the Income Tax Act regarding revision of assessment orders.
2. Admissibility of investment allowance for a weigh bridge under Section 32-A of the Income Tax Act.

Issue 1: Interpretation of Section 263 of the Income Tax Act regarding revision of assessment orders:
The case involved a question of law referred by the Income Tax Appellate Tribunal regarding the cancellation of an order passed under Section 263 of the Income Tax Act by the Commissioner of Income Tax. The Tribunal had allowed the assessee's appeal without considering the objection raised by the revenue that investment allowance for a weigh bridge was not admissible under Section 32-A of the Act. The Tribunal held that once an order of assessment had been appealed against, it could not be revised under Section 263 of the Act. However, the revenue argued that a clarificatory amendment in 1989 allowed for the exercise of power under Section 263 even if an assessment order had been appealed. This position was supported by judgments of the Supreme Court and the Bombay High Court. The Court held in favor of the revenue, stating that the Tribunal's cancellation of the Commissioner's order under Section 263 was erroneous, as the amendment applied retrospectively to all appeals filed before or after 1.6.1988.

Issue 2: Admissibility of investment allowance for a weigh bridge under Section 32-A of the Income Tax Act:
The assessee, running a rolling mill, had claimed investment allowance for a weigh bridge under Section 32-A of the Income Tax Act, which was initially allowed by the assessing authority. However, the Commissioner of Income Tax set aside the assessment order under Section 263 and directed a re-examination of the claim. The Tribunal, without considering the objection raised by the revenue, allowed the assessee's appeal based on a previous order in a similar case. The revenue contended that the weigh bridge did not qualify for investment allowance under Section 32-A. The Court did not delve into the specifics of the weigh bridge's eligibility but focused on the procedural aspect, ultimately ruling in favor of the revenue based on the interpretation of Section 263 and the retrospective application of the clarificatory amendment.

This judgment clarifies the application of Section 263 of the Income Tax Act and the admissibility of investment allowance for specific assets under Section 32-A, emphasizing the importance of procedural compliance and the retrospective effect of relevant amendments in tax law.