REGISTHAN PRIVATE LIMITED Vs. COMMISSIONER OF INCOME TAX

JUDGEMENT

(1.) THIS reference application under Section 256(2) of the I.T. Act, 1961, has been filed against the order of the Income-tax Appellate Tribunal dated 19th November, 1981.

(2.) THE petitioner-assessee, M/s. Registhan Pvt. Ltd. (hereinafter referred to as " the assessee-company "), was a partnerin the firm of M/s. Registhan, Jaipur. THE ITO disallowed the claim of the assessee-company for an amount of Rs. 62,270 which was paid in cash and was in violation of the provisions of Section 40A(3) of the. Act.

(3.) MR. Gupta laid great stress on question No. 3 only and cited Janta Metal Supply v. CIT[1977] 110 ITR 672 (SC) and CIT v. Avtar Singh and Sons [1981] 129 ITR 671 (P & H), in support of his contention. There can be no manner of doubt that question No. 3, framed by the assessee-company for the first time in the reference application under Section 256(2) of the Act, is a question of law as held by their Lordships of the Supreme Court in Janta Metal Supply's case [1977] 110 ITR 672 (SC). However, this question does not arise in the facts and circumstances of this case. Firstly, as already mentioned above, this question was not mentioned in the application submitted under Section 256(1) of the Act before the Appellate Tribunal. That apart, we asked MR. Gupta, learned counsel for the assessee-company, to show anywhere from the record right from the order of the ITO to the Appellate Tribunal that such question was ever raised or argued before these authorities. MR. Gupta was unable to show from any material on record or from any of the orders of the ITO or the Commissioner of Income-tax (Appeals) or the Income-tax Appellate Tribunal that such question was ever raised before these authorities. Unless the question was ever raised by the assessee-company that it had made payments in cash in respect of goods for the purpose of resale or otherwise as an expenditure within the meaning of Section 40A(3) of the Act, there is no question of asking the Tribunal to make a reference about such question. This court is not a court of appeal over the order of the Appellate Tribunal and can only give a direction for making a reference if any question of law arises out of the order of the Tribunal. We are clearly of the opinion that, in the facts and circumstances of this case, question No. 3 mentioned above does not arise out of the order of the Tribunal dated 19th November, 1981, and no direction can be given for making a reference of this question. The authorities cited by MR. Gupta are thus of no assistance to the assessee-company in the facts and circumstances of this case.