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TMI Blog1989 (7) TMI 57X X X X Extracts X X X X X X X X Extracts X X X X ..... chinery for manufacture of Nylon-6 yarn under section 33(1)(b)(B)(1) of the Income-tax Act ? (2) Whether, on the facts and in the circumstances of the case, the Income-tax Appellate Tribunal was correct in law in confirming the order of the Commissioner of Income-tax (Appeals) and allowing 50% of depreciation on the machinery installed at the premises of J. K. S. M. and P. P. Ltd. ? (3) Whether, on the facts and in the circumstances of the case, the Income-tax Appellate Tribunal was correct in law in directing the Income-tax Officer, to compute the deficiency relating to the assessment years 1973-74 and 1974-75 which is to be carried forward and set off under section 80J(3) of the Income-tax Act even though the Hon'ble Supreme Court has s ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nd question, we find that in respect of an earlier year, namely, for the assessment year l971-72, a similar question was sought to be referred on a petition being filed by the petitioner hereinbefore the Allahabad High Court. By judgment dated February 8, 1985, in Income-tax Application No. 242 of 1983 (CIT v. J. K. Synthetics Ltd. [1988] 169 ITR 267) the Allahabad High Court did not call for a reference as, in its opinion, the said question was a question of fact. We are in respectful agreement with the said view and, therefore, no reference is called for on this point. In respect of the years 1973-74 and 1974-75, the assessment proceedings have been stayed by the Supreme Court. The question which arose in the present case in respect of t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... neering Works Ltd. [1990] 181 ITR 510 came to the conclusion that such a question is a question of fact and should not be referred. In our opinion, the Tribunal was wrong in coming to the conclusion that the aforesaid question should not be referred. The question as to whether the underestimation was deliberate would, undoubtedly, be a question of fact. In Jay Engineering Works' case [1990] 181 ITR 510, the question of law which was sought to be referred was whether the Tribunal was right in coming to the conclusion that the underestimation of the income was deliberate or not. Assuming that the estimate was made bona fide, the question would still arise that if there is a shortfall between the income assessed and the estimate filed, whethe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nding is essentially a finding of fact and no principle of law is involved in this. We do not find any ground for calling for a reference of this question. For the aforesaid reasons, the petition is partly allowed. The Income-tax Appellate Tribunal is directed to state the case and refer to this court the following two questions of law: "Whether, on the facts and in the circumstances of the case, the Income-tax Appellate Tribunal was correct in law in confirming the order of the Commissioner of Income-tax (Appeals) and deleting the amount of Rs. 1,00,590 being interest under section 216 levied by the Income-tax Officer ? and Whether, on the facts and in the circumstances of the case, the Income-tax Appellate Tribunal was correct in law i ..... X X X X Extracts X X X X X X X X Extracts X X X X
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