Income-tax---

‑‑‑‑Reference‑‑‑Rectification of mistakes ‑‑‑Assessee engaged in drilling tube wells‑‑Investment allowance on drilling machines granted by I.T.O.‑‑ Section 154 invoked to rectify mistake‑‑Question whether investment allowance could be withdrawn‑‑‑Question of law‑-‑ Indian Income Tax Act, 1961, Ss.32A, 154 & 256(2).

The assessee was engaged in the business of drilling tubewells. The assessee claimed investment allowance on drilling machines and it was granted by the Income‑tax Officer. Subsequently, the Income‑tax Officer issued a notice under section 154 of the Income Tax Act, 1961, to rectify the mistake and withdrew the investment allowance originally allowed. On an application under section 256(2) of‑the Act:

Held, that in view of the decision of the Supreme Court in CIT v. N.C. Budharaja & Co. (1993) 204 ITR 412, a debatable question arose whether section 154 could be invoked or not and hence this was a fit case for reference.

CIT v. N.C. Budharaja & Co. (1993) 204 ITR 412 (SC) ref.

Pawnekar for the Commissioner Goyal for the Assessee.

JUDGMENT

Heard learned counsel for parties. This is an application under section 256(2) of the Income Tax Act, 1961, at the instance of the Revenue and the following questions of law have been framed for calling for the statement of the case:

"(1)Whether, on the facts and in the circumstances of the case, the Income‑tax Appellate Tribunal was justified in law in confirming the order of the learned Deputy Commissioner of Income‑tax (Appeals) cancelling the Assessing Officer's order under section 154 withdrawing investment allowance in respect of drilling machines even though the Assessing Officer's action in rejecting such claim of investment allowance was in conformity with the ratio of a decision of the Supreme Court in the case of CIT v. N.C,. Budharaja & Co. (1993) 204 ITR 412?

(2)Whether, on the facts and in the circumstances of the case, the Income‑tax Appellate Tribunal was justified in upholding cancellation of the rectification order passed by the Assessing Officer on October 19, 1992, despite the decision of the Supreme Court in the case of CIT v. N.C. Budharaja & Co. (19.93) 204 ITR 412, on the ground that the aforesaid order of the Supreme Court was passed on September 7, 1993 and, hence, it would not be applicable to the order, dated October 19, 1992, of the Assessing Officer under section 154 in the case?"

It is a debatable matter whether after the decision of the apex Court in the case of CIT v. N.C. Budharaja and Co. (1993) 204 ITR 412, whether section 154 of the Income‑tax Act can be invoked or not.

Let the statement of the case be called from the Tribunal on the aforesaid question of law.

M.B.A./646/FC Order accordingly.