Karnataka H.C : Whether an application for reference under s. 256(2) of the Act lies in respect of an order made by the Tribunal rejecting an application made before it under sub-s. (2) of s. 254 of the Act?

Sections 254(2), 256(2)

Asst. Year 1977-78, 1978-79, 1979-80, 1980-81

Counsel Appeared

G. Sarangan, for the Assessee : K. Srinivasan & H. Raghavendra Rao, for the Revenue

BY THE COURT :

In these four petitions presented by Jai Bharat Enterprises, Bangalore, under s. 256(2) of the IT Act, 1961 (for short ” the Act “), the following question of law arises for consideration : ” Whether an application for reference under s. 256(2) of the Act lies in respect of an order made by the Tribunal rejecting an application made before it under sub-s. (2) of s. 254 of the Act?”

The facts of the case, in brief, are as follows : For the asst. yrs. 1977-78 to 1980-81, the assessee claimed relief under s. 35B(1)(b) of the Act in respect of certain expenses incurred. The ITO held that the assessee was not entitled to weighted deduction since it had sold all goods to MMTC which in turn exported the goods. It was further held that as all the expenses which fell under sub-cl. (iii) of s. 35B(1)(b) of the Act were incurred in India, the assessee was not entitled to weighted deduction.

On appeal, for the asst. yr. 1977-78, the CIT (Appeals) held that the petitioner was entitled to weighted deduction on 50per cent of the rent payment and the expenses on the supervision in foreign ports. As regards the other items, he held that the assessee was not entitled to weighted deduction. Regarding the asst. yr. 1978-79, in addition to the aforesaid deduction, the CIT (Appeals) directed the ITO to consider whether weighted deduction at 75per cent of the total salary paid by the assessee, 50per cent of the assessee’s expenditure on printing and stationery, 50per cent of the rent payment to Sanvordem and Mangalore Offices should be allowed. Similar orders were passed for the asst. yrs. 1979-80 and 1980-81. Aggrieved by the orders of the CIT (Appeals), the assessee filed appeals before the Tribunal in which the assessee urged the following grounds: ” (a) On the facts and circumstances of the case, the learned CIT (Appeals) erred in not allowing the claim under s. 35B of the Act as made by the appellant. (b) On the facts and circumstances of the case, the learned CIT (Appeals) ought to have held that the claim as regards the weighted deduction under s. 35B of the Act as made by the appellant fell under sub-cl. (1)(b) of s. 35B and thus the appellant was entitled to the deduction as claimed. (c) Without prejudice, the disallowance of the claim under s. 35B of the Act as confirmed by the learned CIT (Appeals) is excessive and ought to be reduced substantially. “

4. The Tribunal, while disposing of the appeals, directed the ITO to give weighted deduction on the commission payment made to MMTC. However, as regards the other items, no finding was given. In the circumstances, the assessee made an application under sub-s. (2) of s. 254 of the Act requesting the Tribunal to rectify the mistake by considering the prayer of the assessee for granting weighted deductions on the other items as it had not considered them at all in its order. The Tribunal, by its order dated September 24, 1985, rejected the miscellaneous petition holding that the assessee had not raised such specific grounds in the appeal.

5. Thereafter, the assessee made an application under sub-s. (1) of s. 256 before the Tribunal requesting it to refer the following questions for the opinion of this Court : ” (a) Whether, on the facts and in the circumstances of the case, the Tribunal was justified in rejecting the miscellaneous application of the applicant requesting the Tribunal to give a specific finding in respect of the claim made under s. 35B of the Act on various items referred to in the order of the CIT (Appeals) ? (b) Whether, on the facts, the Tribunal was right in holding that the grounds raised before them were too general and did not relate to any specific item ? (c) Whether, on the facts, the Tribunal was justified in not dealing with some of the items only on which weighted deduction was claimed while disposing of the appeal without adducing any reason? “

The Tribunal dismissed the reference applications on the ground that no question of law arose out of the order of the Tribunal in the miscellaneous application. Thereafter, the assessee has presented these petitions under sub-s. (2) of s. 256 of the Act. Sub-ss. (1) and (2) of s. 256 of the Act read: (1) The assessee or the CIT may, within sixty days of the date upon which he is served with notice of an order under, s. 254, by application in the prescribed form, accompanied where the application is made by the assessee by a fee of two hundred rupees, require the Tribunal to refer to the High Court any question of law arising out of such order and, subject to the other provisions contained in this section, the Tribunal shall, within one hundred and twenty days of the receipt of such application, draw up a statement of the case and refer it to the High Court : Provided that the Tribunal may, if it is satisfied that the applicant was prevented by sufficient cause from presenting the application within the period hereinbefore specified, allow it to be presented within a further period not exceeding thirty days. (2) If, on an application made under sub-s. (1), the Tribunal refuses to state the case on the ground that no question of law arises, the assessee or the CIT, as the case may be, may, within six months from the date on which he is served with notice of such refusal, apply to the High Court and the High Court may, if it is not satisfied with the correctness of the decision of the Tribunal, require the Tribunal to state the case and to refer it, and on receipt of any such requisition, the Tribunal shall state the case and refer it accordingly. ” As could be seen from sub-s. (1) of s. 256 of the Act, an application could be filed before the Tribunal seeking a reference on the ground that a question of law which requires reference to the High Court arises out of the order of the Tribunal made under s. 254 of the Act within sixty days from the order. If that application is rejected, the party concerned is entitled to make an application before this Court under sub-s. (2) of s. 256 of the Act.

In our opinion, an application under sub-s. (1) or (2) of s. 256 of the Act lies only with reference to an order made by the Tribunal under sub-s. (1) of s. 254. If such an order is amended on an application made by the party under sub-s. (2) of s. 254, then the order, as amended, substitutes the earlier order made under sub-s. (1) of s. 254 and becomes an order under s. 254(1) and consequently a reference application either under sub-s. (1) or (2) of s. 256 of the Act would lie with reference to such amended order. But the case would be entirely different if a miscellaneous application for the rectification of the order made under s. 254(1) is rejected by the Tribunal. In such a case, the result would be the order made under s. 254(1) remains undisturbed and a reference application would have to be made either under sub-s. (1) of s. 256 or sub-s. (2) of s. 256 of the Act, only with reference to such order, for questions of law could arise only out of such order. In fact, no question of law arises out of an order rejecting an application made under s. 254 (2) of the Act. This is also the view taken by the Madhya Pradesh High Court in Popular Engineering Co. vs. CIT (1983) 140 ITR 398. We are in respectful agreement with that view.

Accordingly, we answer the question set out first as follows: No application for reference under s. 256(2) of the Act lies in respect of an order made by the Tribunal rejecting an application made before it under sub-s. (2) of s. 254 of the Act.

In the result, we reject the civil petitions as not maintainable.

[Citation : 173 ITR 132]