9911796707
TMI Blog1987 (7) TMI 31X X X X Extracts X X X X X X X X Extracts X X X X ..... Income-tax Appellate Tribunal was correct in law in restoring to the file of the Income-tax Officer the matter relating to the admissibility of depreciation allowance on the assets used for scientific research when the Income-tax Officer had made no disallowance on the basis of the amended provisions of section 35(2)(iv) referred to by the Income-tax Appellate Tribunal ? " We find that so far as this point is concerned, the Tribunal has simply remanded the matter to the Income-tax Officer for being decided according to law after the decision of the Supreme Court in a writ petition filed by the assessee challenging the vires of a retrospective amendment to section 35(2)(iv) of the Income-tax Act, 1961. Counsel for the Commissioner states ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rcumstances, question No. 1 is academic. The second question of which reference is sought reads as follows: "Whether, on the facts and in the circumstances of the case, the Income-tax Appellate Tribunal was correct in law in holding that expenditure of Rs. 35,423 fell within the meaning of section 37(3) and it was not of capital nature ? " Counsel for the Department submits that the Department had asked for a reference of the following question to this court so far as this aspect is concerned : " Whether, on the facts and in the circumstances of the case, the Income-tax Appellate Tribunal was correct in law in holding that expenditure of Rs. 35,423 fell within the meaning of section 37(3) and it was not of capital nature ? " Counsel a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... to be referred independently. The third question of which reference is sought reads as follows: " 3(a) Whether, on the facts and in the circumstances of the case, the Income-tax Appellate Tribunal was legally correct in placing the onus on the Income-tax Officer to apply rules 117A and 40 of the Incometax Rules when the assessee has not made any application for waiver of interest under the said rules ? (b) Whether, on the facts and in the circumstances of the case, the Income-tax Appellate Tribunal was legally correct in entertaining the ground of appeal on the point of waiver of interest under rules 117A and 40 when no appeal on the applicability or otherwise of these rules could be entertained by it ? (c) Whether, on the facts an ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of the assessee before the Income-tax Officer ? " After hearing both counsel at some length and in view of the decision the Supreme Court in Addl. CIT v. Gurjargravures P. Ltd. [1978] 111 ITR 1 and of this court in CIT v. Anand Prasad [1981] 128 ITR 388, we think that the question raised calls for further consideration. We, therefore, direct the Tribunal to state a case and refer this question also for the decision of this court. In the result and for the reasons mentioned above, the application is rejected in so far as questions Nos. 1, 2 and 3(a) are concerned, but questions Nos. 3(b) and (c) and 4 set out above are directed to be referred The application is disposed of accordingly. No order is made as to costs. - - TaxTMI ..... X X X X Extracts X X X X X X X X Extracts X X X X
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