GANGESHWAR LTD Vs. COMMISSIONER OF INCOME TAX

JUDGEMENT

(1.) THE petitioner seeks reference of the following questions :

(2.) THE present application arises out of the order of the Tribunal passed under S. 254(1) of the Act. The petitioner had also moved an application under S. 271(1)(a). On the rejection of the application under S. 254(2), the assessee filed an application under S. 256(2) in this Court being Income -tax Case No. 47 of 1989 but the same was dismissed by this Court. That apart penalty was levied on the petitioner under S. 273(a). A rectification application under S. 254(2) was also filed with regard to the levy of the said penalty when that rectification application was dismissed. The petitioner filed two petitions in this Court being Incometax Cases Nos. 24 and 25 of 1989 (Gangeshwar Ltd (No. 1) vs. CIT (1992) 106 CTR (Del) 358 : (1991) 192 ITR 180 ,challenging the levy of penalty under S. 273 and also challenging the order under S. 254(2). The questions of law proposed therein were similar to questions Nos. 3 and 4 in the present application. Income -tax Cases Nos. 24 and 25 of 1989 (Gangeshwar Ltd. (No. 1) vs. CIT (supra) were dismissed by this Court, vide order dt. January 28, 1991. In view of our aforesaid orders, we cannot agree with counsel for the petitioner that those orders have no bearing in this petition. In our opinion, the questions of law now proposed to be raised in questions Nos. 3 to 5 are identical or in any case pari materia with those raised in Income - tax Cases Nos. 24 and 25 of 1989 (Gangeshwar Ltd. (No. 1) vs. CIT (supra). Even on facts, we find that Tribunal has mentioned in its order under S. 254(2) that they had omitted to take into consideration the difference in the dates when the books of account were closed. Nevertheless, according to the Tribunal, it make no difference to the conclusion which the Tribunal had arrived at, namely, that levy of penalty under S. 271(1)(a) was justified. This conclusion is, in our opinion, a question of fact and, therefore, no question of law arises. We may, at this stage, mention that, in the present case, notice was directed to be issued only in respect of questions Nos. 3 to 6. For the aforesaid reasons, questions Nos. 3 and 4 are questions of fact. Question No. 5 does not arise but question No. 6 is a question of law and we, therefore, direct the Tribunal to state the case and refer the following question to this Court :