9911796707
TMI Blog1977 (4) TMI 10X X X X Extracts X X X X X X X X Extracts X X X X ..... iii) of the Act, the assessee was entitled to the obsolescence allowance in respect of the old kiln for the assessment year 1970-71 ? and (2) Whether, on the facts and circumstances of the case, the Appellate Tribunal is justified in holding that the reference application is not maintainable ? It may be straightaway mentioned here that it is only the first of these two questions that was the subject-matter of reference before the Tribunal under s. 256(1) of the Income-tax Act, the refusal of which has given rise to the above petition. The second question was not agitated before the Tribunal and in fact it arises out of the order refusing to refer the first question. The facts leading up to this petition are as follows : For the asse ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... is a condition precedent for granting obsolescence allowance under s. 32(1)(iii) of the Act. Hence, a miscellaneous petition was filed on March 16, 1974, bringing it to the notice of the Appellate Tribunal that the assessee is not entitled to the obsolescence allowance as the deficiency was not actually written off in the books of the assessee as required by the proviso to s. 32(1)(iii) of the Income-tax Act. The Appellate Tribunal rejected the miscellaneous petition by its order No. 40/ Hyderabad/73-74 dated February 26, 1975, observing that when the assessee has claimed a sum of Rs. 56,604 by way of repairs, if the old kiln is treated as obsolescent, he should be clearly treated as having written off the entire outstanding as scrap and th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n holding that the reference application filed under s. 256(1) of the Income-tax Act was not maintainable on the ground that the question sought for does not arise from an order under s. 254 and, secondly, he contended that the first question that is sought to be referred arises out of the order of the Tribunal dated February 26, 1975. He submits that the order passed on the miscellaneous application is an order passed within the meaning of s. 254(2) of the Income-tax Act as the said provision enables him to file an application for rectification or amendment of the order passed under sub-s. (1). In other words, his contention is whether it is an order allowing amendment or refusing in amendment, it is an order under s. 254(2) of the Income- ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ading of these provisions it is clear that under s. 254(1) of the Income-tax Act the Appellate Tribunal may pass an order under as it thinks fit after giving the parties an opportunity of being heard. Under sub-s. (2) of s. 254, the Appellate Tribunal may amend any order passed by it under sub-s. (1) within a period of four years, if there is any mistake apparent from the record and if the mistake is brought to its notice by the assessee or the ITO. In the instant case, the Appellate Tribunal by its order dated October 9, 1973 in the appeal preferred by the department directed the ITO to grant obsolescence allowance in accordance with s. 32(1)(iii) of the Act. This order was passed under sub-s. (1) of s. 254 of the Income-tax Act. The misce ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e miscellaneous petition, which in our opinion is clearly untenable. We do not see any valid reason to differ from the view taken by the Income-tax Appellate Tribunal in holding that the reference application in the present case was not maintainable as the above question of law that is sought to be referred does not arise out of the order of the Tribunal on the miscellaneous petition. As regards the second question, it may be noticed that this question was not the subject-matter of reference application before the Appellate Tribunal. Under s. 256(2) of the Income-tax Act, the High Court can direct the Appellate Tribunal to state the case in respect of the questions which were refused to be referred by the Appellate Tribunal, if it is sati ..... X X X X Extracts X X X X X X X X Extracts X X X X
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