COMMISSIONER OF INCOME TAX Vs. MAHAVIR PLANTATIONS LIMITED

JUDGEMENT

(1.) THESE petitions concern the assessments made on the assessee for five different asst. yrs. 1978 79, 1979 80, 1980 81, 1981 82 and 1987 88. Various questions were raised on some of which the two members who heard the appeals originally differed and the matter was referred to a third member, who called for a report from the ITO on some points in controversy. Eventually the Tribunal passed the order annexure 'C 2' covering the points on which there was difference between the two members originally. Some questions arise out of the concurring order of the first two members and some out of the final order passed after the receipt of the remand report. Many of the questions are common to more than one year. We are of the opinion that some of the questions raised are questions of law arising out of the order of the Tribunal and they are liable to be referred. At the same time some questions raised are either questions of fact or covered against the Revenue by anterior decisions of this Court and therefore not liable to be referred. We shall deal with those questions which are not liable to be referred first and thereafter direct reference of those questions which we feel are liable to be referred.

(2.) QUESTION No. 2 raised in R. A. No. 238 of 1987 relating to the year 1978 79 relates to the allowance of Rs. 2,351 under S. 40A(5) of the IT Act. This point stands covered against the Revenue by the decision of this Court in CIT vs. Toshiba Anand Lamps Ltd. [1984] 145 ITR 563 (ker) and therefore is not liable to be referred. The same question arises in the year 1979 80 also being question No. 1 in R. A. No. 240 of 1987 though the figure of disallowance is Rs. 28,446. We decline to refer this question arising for the years 1978 79 and 1979 80.

(3.) QUESTION No. 3 in R. A. No. 239 of 1987 is the same as the third question in R. A. No. 241 of 1987, question No. 9 in R. A. No. 243 and question No. 5 in R. A. No. 245 of 1987. The question relates to the deductibility or otherwise of the replanting expenditure. The Tribunal has allowed the expenses relying on r. 8(2) of the IT Rules, 1962, and remitted the matter back for consideration relating to certain points mentioned. A perusal of r. 8(2) shows that if the expenditure has been incurred for replacement of bushes that have died or become permanently useless in an area, if the area has not previously been abandoned, the expenditure is allowable. That is what precisely the Tribunal has given in this case. We do not find any substance for the question raised as the answer is self evident. We, therefore, decline to refer this question arising in the reference application mentioned earlier.