Income-tax ---

----Reference---Rectification-of mistake---Tribunal rejecting application made before it under S.254(2), Indian Income Tax Act, 1961, does not give rise to a referable question of law---Indian Income Tax Act, 1961, Ss.254(2) & 256.

The assessee received refund of excess sales tax charged on purchases of raw material in earlier years. The assessee contended that the refund of excess sales tax was not taxable as income under section 41(I) of the Income Tax Act, 1961, as the amount was payable to the M.P.E.B. under the terms of a contract. The Inspecting Assistant Commissioner assessed the amount as income under section 41(1). The Commissioner of Income-tax (Appeals) affirmed the order of .the Inspecting Assistant Commissioner. The Tribunal affirmed the order of the Commissioner of Income-tax (Appeals). The assessee filed a miscellaneous application under section 254(2) of the Income Tax Act, 1961, for rectification of the order of the Tribunal, which was also dismissed by the Tribunal. The assessee then tiled a reference application under section 256(1) of the Act before the Tribunal. The Tribunal dismissed the reference application on the ground that no question of law arose out of the order of the Tribunal. The assessee, thereafter, filed. an application under section 256(2). The High Court called for a reference upon which the Department raised a preliminary objection that a reference application under subsection (1) or subsection (2) of section 256 could not lie with reference to an order rejecting an application under section 254(2):

Held, that an order made by the Tribunal rejecting an application made before it under section 254(2) of the Act does not give rise to a referable question of law and no application under subsection (1) or (2) of section 256 lies with reference to such an order.

Popular Engineering Co. v. CIT (1983) 140 ITR 398 (MP) and Jai Bharat Enterprises v. CIT (1988) 173 ITR 132 (Kar.) fol.

G. M. Chaphekar and Smt. Meena Chaphekar for the Assessee.

D. D. Vyas for the Commissioner.

JUDGMENT

N. K. JAIN, J.---Pursuant to the order, dated August 11,, 1989, of this Court in Miscellaneous Civil Case No. 116 of 1987 (see Skyline Industries (P.) Ltd. v. CIT (1991) 187 ITR 130), the Income-tax Appellate Tribunal, Indore Bench, Indore, has under section 256(2) of the Income Tax Act, 1961 (for short, "the Act"), stated the case and referred the following question said to be of law to this Court (at page 131):

Whether, on the facts and in the circumstances of the case, the Tribunal was justified in refusing to rectify the order, dated June 6, 1985, passed by the Tribunal dismissing the appeals preferred by the assessee?"

The assessee is a private limited company. The assessment year involved is 1980-81, the previous year ending on June 30, 1979. The assessee dealt in manufacture and sale of conductors. During the relevant assessment year, the assessee received a credit note for Rs.1,75,613 from Hindustan Aluminium Corporation Ltd., towards refund of excess sales tax charged on purchases of raw material in earlier years. In reply to the query as to why the said amount should not be taxed under section 41(1) of the Act, it was contended by the assessee that the amount was payable to the M.P.E.B. as per terms of the contract and hence not taxable under 41(1) of the Act. The Inspecting Assistant Commissioner (Assessment), however, did not agree with the contention and taxed the said amount under section 41(1) of the Act.

The assessee went in appeal before the Commissioner of Income-tax (Appeals). The Commissioner of Income-tax (Appeals) dismissed the appeal holding that the said amount was rightly treated as income of the assessee under section 41 of the Act. The assessee then came in second appeal before the Tribunal. The Tribunal affirmed the view taken by the two authorities below and dismissed the appeal by order, dated June 6, 1985, passed in I. T. A. No. 1126/Ind. of 1983. The assessee thereafter on October 3, 1985, filed a miscellaneous application under section 254(2) of the Act for rectification of the aforesaid order of the Tribunal, which too was dismissed by the Tribunal by order, dated February 21, 1986. The assessee then made a reference application under section 256(1) of the Act before the Tribunal. The Tribunal, by its order, dated November 18, 1986, dismissed the application holding that no referable question of law arises from its order, dated February 21, 1986, whereupon the assessee moved this Court under section 256(2) of the Act. The Court by its order, dated August 11, 1989, directed the Tribunal to state the case and refer the aforesaid question of law. This is how the reference has come up before this Court.

We have heard at length Shri G. M. Chaphekar, learned senior counsel appearing with Smt. Meena Chaphekar for the applicant/assessee, and Shri D. D. Vyas, learned counsel for the non-applicant/Department. Shri Vyas raised a preliminary objection that the reference, though called for by this Court is incompetent in law.

Therefore, the first question involved in the case is whether a reference application under subsection (1) of section 256 or subsection (2) of section 256 of the Act can lie with reference to an order rejecting an application made under section 254(2) of the Act. The controversy, we find, stands resolved by a decision of this Court in Popular Engineering Co. v. CIT (1983) 140 ITR 398, wherein it has been held (headnote):

"The order contemplated under section 256(1) is the order passed under section 254 of the Act. The order of the Tribunal under section 254(1) may be amended under section 254(2) for rectifying any mistake apparent from the record. If, however, the application for rectification is dismissed, there is no amendment of the order passed under section 254(1). Where no reference is sought in respect of the appellate order passed under section 254(1) the same becomes final in view of section 254(4) and no reference from the order rejecting an application for the rectification of any mistake is tenable under section 256(1). The position would be different if the Tribunal amends its order for rectifying any mistake. In that case the amended order could be the subject-matter of a reference under section 256(1) of the Income Tax Act, 1961. "

This is also the view taken by the Karnataka High Court in Jai Bharat Enterprises v. CIT (1988) 173 ITR 132. We are in respectful agreement with that view.

It will be thus seen that an order made by the Tribunal rejecting the application made before it under section 254(2) of the Act does not give rise to any referable question of law and no application under subsection (1) or (2) of section 256 of the Act lies with reference to such an order.

In view of the abovenoted position of law, the instant reference turns out to be incompetent. The question, though called for by this Court, does not in fact, arise in law and it goes against the assessee. We do not also propose to have recourse to section 258 of the Act and refer the case back to the Tribunal as it, in view of the aforesaid legal position, would be an exercise in futility.

In the result, we dispose of the case as aforesaid but without any order as to costs. Counsel's fee is, however, allowed at Rs.750, for each side, if certified.

Copy of the order be transmitted to the Tribunal.

M. B. A. /3056/FC Order accordingly.