SESHASAYEE PAPER AND BOARDS LIMITED VS COMMISSIONER OF INCOME TAX, 2000 PTD-MADRAS-HIGH-COURT-INDIA 3580 (1998)

(a) Income-tax---

----Revision---Commissioner had jurisdiction to revise order under S. 125A passed by IAC---Commissioner was competent to revise that part of assessment order which did not form subject-matter of appeal before CIT' (Appeals) and Tribunal---Indian Income Tax Act, 1961, Ss. 125A & 263.

(b) Income-tax---

----Depreciation---Extra shift allowance---In respect of the plant and machinery is to be allowed on basis of double and triple shifts worked by entire concern---Indian Income Tax Act, 1961, S.32.

Held, (i) that the Commissioner of Income-tax had jurisdiction under section 263 of the Income Tax Act, 1961, to revise the assessment order passed by the Inspecting Assistant Commissioner of Income-tax (Assessment) in pursuance of the provisions of section 125A of the Income Tax Act, 1961.

CIT v. V.V.A. Shanmugham (1999) 236 ITR 878 (Mad.) fol.

(ii) That the Commissioner of Income-tax was competent to revise, under section 263 of the Act that part of the assessment order which did not form the subject-matter of an appeal before the Commissioner of Income-tax (Appeals) and the Tribunal.

CIT v. Shree Manjunathesware Packing Products and Camphor Works (1998) 231 ITR 53 (SC) fol.

(iii) That the assessee was entitled to double and triple shift allowance in respect of the plant and machinery on the basis of number of days during which the concern had actually worked double shift or triple shift and not a particular time of machinery or plant had worked double shift or triple shift during the previous year.

South India Viscose Ltd. v. CIT (1997) 227 ITR 286 (SC) fol.

S.A. Balasubramaniam for the Assessee.

C.V. Rajan for the Commissioner.

JUDGMENT

N.V. BALASUBRAMANIAN, J.---At the instance of the assessee and the Department, the following questions of law have been referred to us for the assessment year 1977-78, by the Income-tax Appellate Tribunal, B. Bench, Madras:

"(i) Whether on the facts and in the circumstances of the case, the Income-tax Appellate Tribunal has rightly held that, the Commissioner of Income-tax had jurisdiction under section 263 of the Income Tax Act, 1961, to revise the assessment order passed by the Inspecting Assistant Commissioner of Income-tax (Assessment) in pursuance of the provisions of section 125A of the. Income Tax Act, 1961?

(ii) Whether, on the facts and in the circumstances of the case, the Income-tax Appellate Tribunal has rightly held that the Commissioner of Income-tax was competent to revise under section 263 of the Income Tax Act, 1961, that part of the assessment order which did not form the subject-matter of an appeal before the Commissioner of Income-tax (Appeals) and the Tribunal?

(iii) Whether, on the facts and in the circumstances of the case, the Income-tax Appellate Tribunal has rightly held that the assessee is entitled to extra shift allowance in respect of the plant and machinery on the basis of double and triple shifts worked by the entitled, a concern?"

So far as the first question of law referred to us at the instance of the assessee, is concerned, the issue raised in this case is covered against the assessee by the judgment of this Court in. T.C. No. 1090 of 1980, dated January 7, 1997 (CIT v. V.V.A. Shanmugam (1999) 236 ITR 878). Hence, we answer the first question of law referred to us at the instance of the assessee in the negative (sic) and against the assessee.

So far as the second question of law referred to us at the instance of the assessee, is concerned, the same is also covered against the assessee by a decision of the apex Court in the case of CIT v. Shree Manjunathesware Packing Products and Camphor Works -(1998) 231 ITR 53 wherein, the Supreme Court held that the Commissioner has jurisdiction to revise the order of the Income-tax Officer though that order of assessment is the subject-matter of appeal before the Commissioner of Income-tax (Appeals) or the Appellate Tribunal. Following the said decision of the Supreme Court, we answer the second question of law referred to us at the instance of assessee in the affirmative and against the assessee.

In so far as the question of law referred to us at. the instance of the Department is concerned, the issue is also covered against the Department by a recent judgment of the Supreme Court in South India Viscose Ltd. v. CIT (1997) 227 ITR 286 wherein it was held that the assessee is entitled to extra shift allowance in respect of plant and machinery on the basis of number of days during which the concern had actually worked double shift or triple shift and not a particular item of machinery or plant had worked double shift or triple shift, during the previous year. We hold that the order of the Appellate Tribunal is correct. Hence, we answer the question of law referred to us at the instance of the Department in the affirmative and against the Department: The parties are directed to bear their own costs.

M.B.A./141/FCOrder accordingly.