Delhi Adarsh Financiers P. Ltd. vs Commissioner Of Income-Tax, ...
1989 Latest Caselaw 572 Del

JUDGMENT

Kirpal, J.

1. In respect of the assessment year 1976-77, the petitioner had sought reference of the following five question of law before the Income-tax Appellate Tribunal :

"(i) Whether the final assessment order declared as a draft assessment order dated March 5, 1983, by Mr. D. N. Sachdeva, Income-tax Officer, is a proper order under section 143(3)/144B/129 of the Income-tax Act when the assessment order dated March 29, 1979, was time-barred having been served on April 7, 1979 ?

(2) Whether the application of (sic) section 144B order merged with draft assessment order as final is good in law under the income-tax Act when it is describe as a 'draft order' ?

(3) Whether the Income-tax Officer was justified in law and fact in treating the illegal and void dated March 29, 1979, as correct in law to follow further proceeding in law consequently invalid ?

(4) Whether the addition made in the trading account on cash accounting basis without any error or omission is illegal and void and be deleted ?

(5) Whether the proceeding initiated by the Income-tax Department on time-barred and invalid order with fresh assessment are proper and tax demanded illegal on time-barred assessment consequently ?"

2. It appears that on April 21, 1979, an assessment was made against the petitioner, an appeal was filed and on September 25, 1980, the commissioner of Income-tax (Appeals) set aside the assessment order remanded the case for fresh assessment order being passed. A further appeal was filed by the Department, but the Tribunal dismissed the same on January 11, 1982, and it upheld the orders of the commissioner of Income-tax (Appeals) in remanding the case, thereafter. A fresh assessment order was passed by the Income-tax Officer. An appeal was filed, but the commissioner of Income-tax (Appeal) rejected and the second appeal was dismissed on July 22, 1986. One of the contention raised in this appeal was that the original order dated April 21, 1979 was barred by time. The Tribunal, inter alia, came to the conclusion that this question could not be agitated apart from finding that there was no basis for coming to the conclusion that the said order was barred by time.

3. The aforesaid application was filed by the petitioner seeking reference of the aforesaid question. The Tribunal further came to the conclusion that no question of law arose. It is thereafter, that the present petition has been filed. In the present petition, them following three question have been sought to be raised :

"(i) Whether, on the fact and circumstance, the assessment order made are legal and within time under the Income-tax Act ?

(2) Whether the addition of Rs. 13,393 held by the Tribunal by applying 40 per cent. gross profit rate to sale was justified in law when 30 per cent gross profit was held in the assessment year 1982-83 of which one order for these both years has been ordered by the Hon'ble Tribunal ?

(3) Whether, on the fact of the case, the disallowance out of Rs. 1,000 out of the conveyance was legal when this ground of appeal was not withdrawn before the commissioner (Appeals) ?"

4. At the outset, we would like to point out that the petitioner can, in a petition under section 256(2) of the income-tax Act, raise only those question of which reference was sought under section 256(1). In the present case, a number of question of law have been raised which are different. We, therefore, restrict the petitioner only to those question which were sought to be raised before the Tribunal in the application under section 256(1).

5. Mr. Saini states that he restrict his submission only with regard to the question of law pertaining to the original assessment order being barred by time. It is contended by learned counsel for the petitioner that this is a pure question of law and should be referred.

6. In our opinion, there is no merit in this contention. The assessment order dated April 21, 1979, was the subject of appeal to the Commissioner of Income-tax (Appeals) and then to the Tribunal Ultimately, the Tribunal vide an order dated January 11, 1982, came to the conclusion that the assessment order should be aside and the case remanded for a assessment. Under the provision of section 254(4) of the Income-tax Act such a decision of the Tribunal is final. The petitioner did not seek reference against the said order dated January 11, 1982, of the Tribunal. What the petitioner is now seeking to do. Is an effect, to challenge the correctness of the order dated January 11, 1982, by seeking to contended that the original order of assessment dated April 21, 1979 was barred by time. The said order cannot be challenged because, if the petitioner had any grievance, he should cannot be challenged the same by filing an application under section 256(1) after the order dated January 11, 1982, had been passed by the Tribunal. What is an appeal before the Tribunal in this case was not the assessment order dated April 21, 1979, but the fresh order of the income-tax Officer which was passed later.

7. The answer to the question raised is therefore, self evident and we see no reason as to why the Tribunal should be directed to state the case for referring any question of law. The application is, therefore, dismissed.

8. There will be no order as to costs.