Judgment:
Rajesh Balia, J.
1. Heard learned counsel for the parties.
2. This is an application under Section 256(2) of the IT Act, 1961. It relates to asst. yr. 1982-83 and arises out of an order dt. 1st Sept., 1986, passed by the Tribunal in M.A. No. 65/Jp/1986 ITA No. 116/Jp/1985 decided on 14th Feb., 1986. (The title of the case by inadvertence mentions it to be a reference application arising out of order dt. 14th Feb., 1986).
3. The application of the Revenue under Section 256(1) was rejected by the Tribunal by its order dt. 23rd June, 1987.
4. The brief facts leading to this application are that the assessee-firm was carrying on the business of exploitation of stone mines and sales of stones. For the assessment year he filed his return of income in which he has claimed deduction by way of depreciation in respect of trucks owned by it on the written down value and cost of acquisition, as the case may be, at 40 per cent which was accepted by the AO.
The CIT in exercise of his powers under Section 263 has held that the assessment order passed by the ITO was erroneous and prejudicial to the interest of the Revenue insofar as depreciation on the aforesaid trucks owned or hired by the assessee and used in carrying on his business at the rate of 40 per cent value of cost of acquisition. According to the CIT, the trucks in question were used by the assessee for his own mining business and not for running them on hire. The depreciation could be allowed only at the rate of 30 per cent under item Nos. 8 and 9 of Chapter III-D of the Schedule annexed with the Rules. Thus, to the extent the depreciation has been allowed in excess of 30 per cent the assessment order was erroneous and prejudicial to the interest of the Revenue. He accordingly directed the ITO to modify the assessment order by restricting the depreciation on trucks in question at 30 per cent of the written down value or cost of acquisition, as the case may be, and to revise the total income accordingly and require the assessee to pay additional demand of tax.
The Tribunal has allowed the appeals against the order of the CIT upholding the contention of the assessee vide its order dt. 14th Feb., 1986.
The assessee has then moved a Misc. Appln. No. 65/Jp/1986 to add a paragraph in the order dt. 14th Feb., 1986, which was allowed by the Tribunal vide its order dt. 1st Sept., 1986.
Aggrieved with the order dt. 14th Feb., 1986, an application was filed under Section 256(1) of the IT Act, 1961, in which the following question was sought to be raised :
'Whether, on the facts and in the circumstances of the case, the Tribunal was justified in holding that assessee is entitled to depreciation at the higher rate of 40 per cent and not 30 per cent on the trucks used by it for its business ?'
Against the order dt. 1st Sept., 1986, rejecting the application filed under Section 256(1) of the Act arising out of the order passed in Misc. Appln. No. 113/Jp.1985, the following questions have been referred to this Court :
'1. Whether, on the facts and in the circumstances of the case, the Tribunal was justified in reviewing its earlier order dt. 14th Feb., 1986, when there was no mistake apparent from the record in the said order ?
2. Whether, on the facts and in the circumstances of the case, the Tribunal was justified in admitting new facts by adding the new lines to the main order as per assessee's claim, which were duly discussed by the CIT in his order dt. 13th Dec., 1984, and finally it was held by him that the assessee's activity of transporting stones from the mines site does not constitute hiring ?'
5. The proceedings relating to application under Section 256(1) of the IT Act, 1961, arising out of the appellate order dt. 14th Feb., 1986, are not before us. However, in para 6 of the application under Section 256(2) of the IT Act, 1961, it has been stated that the Tribunal has vide its order dt. 23rd June, 1987, rejected both the applications on the ground that the question is purely a factual issue and no referable question of law arises. This appears to be an incorrect factual statement inasmuch as the order dt. 23rd June, 1987, was passed in RA Nos. 411 and 412/Jp/1986 arising out of MA Nos. 64 and 65/Jp/1986 in ITA Nos. 113 and 116/Jp/1985.
6. Having heard the learned counsel for the parties, we are of the opinion that the order of the Tribunal rejecting the application under Section 256(1) of the Act in refusing to refer the questions of law which arise out of its order dt. 1st Sept., 1986, on the ground that no question of law arises is erroneous. Whether in the facts and circumstances of the case, whatever the Tribunal considered it to be a mistake apparent on the face of record or not which confer jurisdiction on the authority seeking to rectify his order cannot be said to be a pure question of fact. In the present case, where the Tribunal has recorded a new-finding which was admittedly not there in its earlier order, a question of law do arise--whether in the facts and circumstances of the case, adding an additional para in the appellate order could be said to be a mistake apparent on the face of record.
7. However, notwithstanding the fact that a question of law arise in the case, we are further of the opinion that this question in the present case has become academic in view of the statement made by the learned counsel for the respondent that in reference arising from original order question has been answered in favour of Revenue and assessment orders have already been revised in terms of the order passed by the CIT.
8. In the like circumstances, the application under Section 256(2) in the case of M/s Ramjidas Ramrichpal, which was heard and decided by the Tribunal by a common order, has been held to be infructuous by this Court in IT Ref. No. 4 of 1988 vide order dt. 3rd July, 2001, in view of the fact that main case itself has been disposed of in favour of the Revenue, by this Court in CIT v. Modi Flooring Stone Co. [IT Ref. Nos. 9/1988 & 9A/1988 decided on 22nd Nov., 1990]. Accordingly, we reject this application. There shall be no order as to costs.