9911796707
TMI Blog1988 (1) TMI 9X X X X Extracts X X X X X X X X Extracts X X X X ..... wn as loss in the revised return. In the books of the petitioner, cash credits aggregating to Rs. 1,49,360 were noticed and the genuineness of all of them was not accepted by the Income-tax Officer. He, therefore, treated the amount of cash credits as the income of the petitioner from undisclosed sources. On appeal, the Appellate Assistant Commissioner remanded the case to the Income-tax Officer with a direction that he should examine the creditors. On further appeal, the Tribunal affirmed the remand order of the Appellate Assistant Commissioner modifying the direction that the petitioner might examine any creditor it liked and if it was in need of the assistance of the assessing authority to force the appearance of the reluctant creditors, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hence no reference under section 256(1) of the Act lies. This is why it is averred in paragraph 44 that the Tribunal's order rejecting the rectification application under section 254(2) is final and no reference is maintainable against that. On the other hand, the contention of learned senior standing counsel is that reference under section 256(1) lies against the order passed under section 254(2) rejecting the rectification application and there being an alternative remedy, the petitioner cannot invoke the writ jurisdiction of this court under article 226 of the Constitution. Under section 256(1), reference can be made against any order passed by the Tribunal under section 254. Sub-section (2), whereunder the Tribunal has passed the impu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the court could, in its discretion, exercise its jurisdiction in entertaining the writ petition. Thus, a question of jurisdiction arose and, therefore, the Calcutta High Court took the view that that question could well be considered in the writ jurisdiction and the alternative remedy of reference to the High Court was no bar. In Popular Engg. Co.'s case [1983] 140 ITR 398, the Madhya Pradesh High Court, however, took the view that where no reference is sought in respect of the appellate order passed under section 254(1), the same becomes final under section 254(4) and no reference from the order rejecting an application for rectification of any mistake is tenable under section 256(1). The approach was that when the order passed under sec ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... and contending that the assessee is not entitled to the obsolescence allowance. The Tribunal by order dated February 26, 1975, rejected the plea and held that the assessee should be clearly treated as having written off the entire outstanding as scrap and that this fact was inherent in its order dated October 9, 1973. The Department filed a reference application before the Tribunal challenging the entitlement of the assessee to have the obsolescence allowance written off under section 32(1)(iii). The said reference application was rejected by the Tribunal on the ground that the question of law sought to be raised by the Department did not arise from out of the Tribunal's order passed on the rectification application, inasmuch as obsolescen ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e petitioner to the Tribunal in the miscellaneous application, it is necessary to amplify the factual position. The case of the petitioner is that people living in the neighbourhood were interested in buying the prospective products of the petitioner and they had deposited amounts in advance with the sales representatives of the petitioner and when the petitioner started production, the goods had been delivered to them. The Tribunal, in the appellate order dated March 13, 1987, observed that the goods had been delivered to such persons almost at the same time at different rates and, for sample sake, the Tribunal pointed out the supplies made to two parties, namely, Kastoori Lal Khandel Nath and Babu Lal and Company. Both parties belong to G ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t a question of law arises from an order passed under section 254(2), will depend on the facts and circumstances of each case. In the instant case, the petitioner can state in the reference application before the Tribunal that there was a mistake apparent from the record in that the rate of supplies made to various parties at almost the same time did not vary, but that all supplies had been made at a uniform rate and the inference drawn by the Tribunal was erroneous. We, however, make it clear that whether such a question, if raised, would be a question of law on the facts and in the circumstances of this case the decision of this question will be entirely within the domain of the Tribunal. So, the petitioner has remedy against the orders p ..... X X X X Extracts X X X X X X X X Extracts X X X X
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