1. G. C. GARG, J.---The Commissioner of Income-tax, Ludhiana, in this petition under section 256(2) of the Income Tax Act, 1961, has prayed that the Income-tax Appellate Tribunal, Chandigarh Bench may be directed to draw up a statement of the case and refer the following questions of law to this Court for its opinion:
(1) Whether, on the facts and in the circumstances of the case, the Income-tax Appellate Tribunal was right in law in allowing extra---shift allowance on transformers, electric sub-station and electric motors which are stationary installations?
(2) Whether, on the facts and in, the circumstances of the case, the Income-tax Appellate Tribunal was right in law in allowing guest house expenses when they are not allowable as per section 37(4) of the Income Tax Act,. 1961?
2. According to the Revenue these questions do arise from the order of the Tribunal, dated March 31, 1997 in the case of the assessse e for the assessment year 1985-86.
3. Learned counsel for the assessee, Mr. Sanjay Bansal, submitted that guest house expenses were allowed by the Tribunal by its order, dated June 29, 1990, in the case of the assessee for the assessm ent year 1982-83 and the Revenue did not seek any reference. Similarly, disallowance with regard to guest house expenses was deleted and extra-shift allowance was allowed on transformers, electric sub-station and electric motors by the Income-tax Appellate Tribunal for the assessm ent year 1984-85 in the case of the assessee~ by order, dated March 10, 1995, in I.T.A. No. 132/Chandigarh of 1990. According to learned counsel; the Revenue did not seek a reference on guest house expenses, but did seek a reference on extra-shift allowance being granted on electric installations, transformers and weighing scales. The Tribunal, however, granted reference on generator and weighing scales vide its' order, dated October 13, .1995, relating to the assessment year 1984-85. The Income-tax Appellate Tribunal only followed its previous view during the assessm ent. Year 1985-86 (year in question). And 1986-87. The Revenue sought a reference relating to similar questions as in this case relating to assessment year 1986-87 .In the assessee's case and reference petition registered as I.T.C. No.68 of 1996 has already been dismissed. In the above premises counsel submitted that this petition deserves to be dismissed.
4. Mr. Bansal, placing strong reliance on Radhasoami Satsong v. CIT (1992) 193 ITR 321 (SC); CIT v.
5. Murugappa Chettiar (S.) (1992) 197 ITR 575 (Ker.); CIT v. Kshma Tandon (Smt.) (1992) 194 ITR 751 (All.) and CIT v. Modipon Ltd. (No.2) (1995) 212 ITR 656 (Delhi), submitted that even on the principle of constructive res judicata this petition deserves to be dismissed as the Revenue did not either seek a reference under section 256 or it was declined.
6. We have heard learned counsel for the parties and have also perused the record.
7. As regards question No.2 relating to guest house expenses, we are of the opinion that this question.
8. Is not a referable question of law. The Revenue has either accepted the view of the Income-tax Appellate Tribunal on this question in respect of other assessment years in the case of the assessee or the question has already been declined by the Tribunal or this Court, being not a referable question of law arising from the order of the Tribunal. We, thus, see no ground to grant this question, it being not a referable question of law.
(1) Whether, on the facts and in the circumstances of the case, the Tribunal was justified in law in holding that machinery in the form of diesel engine, transformer, electric switchgears and air circuit breaker valuing Rs.3,04,748 was not machine tool automatic, semi--automatic entitled to depreciation at 15 percent. Within the meaning of item No. III(B)(8) of Appendix I to rule 5 of the Income-tax Rules, but was general machinery entitled to ten percent.?
(2) Whether, on the facts and in the circumstances of the case, the Tribunal was right in law in sustaining the view that extra-shift allowance on transformer, electric switchgear and air circuit breaker valuing Rs.1,87,374 was not allowable in view of sub-part 3 (special rates) of Annexure-I to rule 5 as electric machinery as mentioned in Serial No. 1 and not special machinery as Part III(B)(8) and C(4) of Appendix I to rule 5 of the Income Tax Rules?
9. More or less same was the view taken in I.T.C. No.23 of 1990, decided on February 25, 1997.
(1) Whether, on the facts and in the circumstances of the case, the Income-tax Appellate Tribunal was right in law in allowing extra---shift allowance on transformers, electric sub-station and electric motors which are stationary installations?
10. The petition thus, stands disposed of. No costs.
11. M.B.A./55/FC