VINNYALLORE INDUSTRIES LIMITED Vs. COMMISSIONER OF INCOME TAX

JUDGEMENT

(1.) The above reference under section 256(1) of the Income-tax Act, 1961, is made to this court, at the instance of M/s. Vinnyallora Industries, a company incorporated on 21/10/1970. The reference relate to the assessment years 1972 and 1973. The question is as follows :

(2.) Rule 19A referred in the question was held by this court in a writ petition as ultra virus the Income-tax Act, 1961, in Warner Hindustan Ltd. v. ITO [1982] 134 ITR 158. Similar decision was rendered by the Allahabad High Court and other High Courts in Century Enka Ltd. v. ITO [1977] 107 ITR 909 (Cal), Madras Industrial Linings Ltd. v. ITO [1977] 110 ITR 256 (Mad) and Kota Box Mfg. Co. Ltd. v. ITO [1980] 123 ITR 638 (All). Parliament amended and incorporated sub-section (1A) to section 80J by the Finance (No. 2) Act of 1980, with effect from 1/04/1972.

(3.) Learned Counsel for the assessee submitted that if the reference is to be answered from the standpoint of the statute, as on today, he has little to argue, in support of the reference and, therefore, argued, it is not permissible for this court to have recourse to sub-s. (1A) of section 80J, in answering the reference. This argument was advanced in two parts : It was argued, the Tribunal did not look into sub-s. (1A) to section 80J whilst making the reference for it was not in the statute and, therefore, this court in answering the question cannot have recourse to that provision. This argument is advanced as a constraint on jurisdiction and counsel elaborated the plea to state such is the law, in answering the question. The second limb of the argument is submitted with reference to sub-section(2) of section 254 of the Income-tax Act, 1961. This part of the plea is elaborated. For rectification of an inadvertent mistake, after four years, it is argued, a mistake cannot be rectified. This was suggested, yet, as another constraint in answering the question. The two facts of the argument are suggested for not relying on sub-section(1A) incorporated in section 80J of the Act.