Commissioner of Income Tax - II vs Alpine Industries Ltd.

This is an appeal filed by Commissioner of Income Tax (Revenue) u/s 260-A of the Income Tax Act (for short ''The Act'') against an order, dated 28-2-2007, passed in IT Appeal No. 521 (Ind.) of 2000, passed by the ITAT (Tribunal) arising out the Assessment Year 1997-98. The question arose before the Assessing Officer as to whether assessee is entitled to claim the deduction of Rs. 7,15,198 and 23,67,552 towards payment made account of excess coal consumption in Unit Nos. 1 and 2 of the assessee during the year in question ? The Assessing Officer added this amount in the Assessment year 1997-98 but the same came to be deleted by the CIT (Appeals) and upheld by the Tribunal in the appeal of assessee. This is what the Tribunal held in paragraph 3 and 4 of its order while upholding the deletion made by the CIT (Appeals):-

On ground no. 1 the Assessing Officer made the addition on account of excess coal consumption on the basis of findings given in earlier year. The Assessing Officer further mentioned that the ld. CIT(A) deleted the addition in earlier year for which the department has preferred appeal before the Tribunal. Therefore, the Addition was made against the assessee on the same reason. The ld. CIT (A) deleted the addition by following his appellate order and former mentioned that the order of the ld. CIT(A) is confirmed by the ITAT deleting the addition on the issue. The ld. CIT(A) accordingly, deleted the addition. The ld. DR merely relied on the order of the Assessing Officer.

On consideration of the above facts, we do not find any merit in the appeal of the revenue. The Assessing Officer has not given any basis whatsoever for the purpose of making the addition in the assessment year in question. The Assessing Officer has merely relied on the order of earlier years in which the ld. CIT(A) has already deleted the addition and was confirmed by the Tribunal. The ld. DR could not point out anything against the findings of the ld. CTT(A). This ground of appeal of the revenue is accordingly, dismissed.

Heard Shri R.L. Jain, learned senior counsel with Ku. Veena Mandlik, learned counsel for the appellant.

Having heard the learned counsel for the appellant i.e. Commissioner of Income Tax and on perusal of order the ridings rendered by the Tribunal can not be faulted with.

In the first place, it is a pure question of fact. Secondly, when both CIT(A) and ITAT returned the concurrent finding of fact against the Revere and in favour of the assessee, then in that even such finding binding upon the High Court while hearing the appeal u/s 260-A of the Act. Thirdly, it not involve any question of law much less substantial question of law for attracting the Rigour of section 260 ibid and lastly, impugned deletion, made by the CTT(A) and affirmed by the Tribunal on the basis of the earlier orders passed by the CIT(A) and Tribunal in relation to the earlier Assessment year and which were not questioned by the Revenue by filing any appeal in this Court.

In our considered view thus, a finding of such nature being finding of fact is not capable of being interfered with, as it does not involve any question of law much less substantial question of law. It does not involve any interpretation of provision of the Act or abstract issue of law or correctness of any decision of High Court or any jurisdictional questions etc. so as to attract the rigour of section 260-A ibid, we as third Court of appeal, can not again probe into factual inquiry like what was undertaken by first and second appellate court [CIT (Appeal) and Tribunal]. It is not permissible. Since provisions of section 260-A ibid are akin to section 100 of C.P. Code and hence, what can not be done while hearing second appeal u/s 100 ibid can not be done as well while hearing appeal filed u/s 260-A ibid. In view of foregoing discussion, we are unable to notice any substantial question of law in this appeal. As a result, the appeal fails and is dismissed in limine.