Cit Vs. Span International - Court Judgment

Excerpt:
counsels: b.b. ahuja, for the respondent in the allahabad high court m. katju & prakash krishna, jj. - land acquisition act, 1894 [c.a. no. 1/1894]. section 4; [sushil harkauli, s.k. singh & krishna murari, jj] acquisition of land held, court cannot issue a writ of mandamus directing the state authorities to acquire a particular land. land acquisition is not purely ministerial act to be performed by executive no direction in nature of mandamus whether interim or final can be issued by court under article 226 necessarily to acquire particular land in public interest. land acquisition is not a purely ministerial act to be performed by the executive and therefore, no mandamus can be issued by the court in exercise of its power under article 226 of the constitution, whether suo motu or otherwise, whether in public interest litigation or otherwise directing acquisition of land under the provisions of land acquisition act, 1894. it would, however, be open to the court in exercise of that power to invite the attention of the executive to any public purpose and the need for land for meeting that public purpose and to require the executive to take a decision, even a reasoned decision, with regard to the same in accordance with the statutory provisions, perhaps even within a reasonable time frame. however, the power of the court under article 226 must necessarily stop at that. thereafter, if the decision taken by the executive is capable of challenge and, there exist appropriate legal grounds for such challenge, it may also be open to the court to quash the decision and to require reconsideration. but no direction in the nature of mandamus whether interim or final can be issued by the court under article 226 to the executive to necessarily acquire a particular area of a particular piece of land for a particular public purpose. section 4; compulsory acquisition of land powers of state government held, renewal of lease in favour of petitioners would not take away power of state government of compulsory acquisition of land. renewal of lease would at best be taken into consideration for determining quantum of compensation. - this is a reference under section 256(1) of the income tax act, 1961 in which the following questions have been referred to us for our opinion :1. whether, on the facts and in the circumstances of the case, the learned tribunal was legally correct in holding that the order of the income tax officer had got merged in the order of the commissioner (appeals) and, therefore, the commissioner of income tax had no jurisdiction to revise that order ? 2. whether, on the facts and in the circumstances of the case, the learned tribunal was right in law in holding that even on merits, the assessee was entitled to deduction under section 80hh of the act ?' 2. the assessee is a firm and the relevant assessment year is 1976-77. for this year the income tax officer allowed deduction under section 80hh of the act and held that all the requirements of the said section had been satisfied.orderm. katju, j.this is a reference under section 256(1) of the income tax act, 1961 in which the following questions have been referred to us for our opinion :'1. whether, on the facts and in the circumstances of the case, the learned tribunal was legally correct in holding that the order of the income tax officer had got merged in the order of the commissioner (appeals) and, therefore, the commissioner of income tax had no jurisdiction to revise that order ?2. whether, on the facts and in the circumstances of the case, the learned tribunal was right in law in holding that even on merits, the assessee was entitled to deduction under section 80hh of the act ?'2. the assessee is a firm and the relevant assessment year is 1976-77. for this year the income tax officer allowed deduction under section 80hh of the act and held that all the requirements of the said section had been satisfied. the commissioner of income tax was of the opinion that the order of the income tax officer was erroneous and prejudicial to the interest of revenue and as such he issued notice under section 263 of the act. he set aside the order of the income tax officer and remanded the matter for a fresh assessment insofar as deduction under section 80hh was concerned. the assessee went up in appeal to the tribunal and the tribunal allowed the appeal following the decision of the allahabad high court in the case of j.k synthetics v. cit : [1976]104itr255(guj) . the tribunal held that since an appeal had been filed against the assessment order, therefore, the commissioner of income tax had no power to revise the order under section 263. at the instance of the department, the above two questions have been referred to us for our opinion.3. in our opinion the first question has to be answered in favour of the department in view of amendment of section 263(1) explanation (c) of the income tax act as amended by finance act of 1989 and as interpreted by the supreme court in the case of cit v. shri arbuda mills ltd. : [1998]231itr50(sc) .4. as regards the second question referred to us, it has to be decided in favour of the assessee since the finding of the tribunal is that the assessee has complied with all the conditions in section 80hh and this is a finding of fact.5. in view of the above, we answer the first question referred to us in favour of the department and against the assessee and the second question in favour of the assessee and against the department.

Judgment:
ORDER

M. Katju, J.

This is a reference under section 256(1) of the Income Tax Act, 1961 in which the following questions have been referred to us for our opinion :

'1. Whether, on the facts and in the circumstances of the case, the learned Tribunal was legally correct in holding that the order of the Income Tax Officer had got merged in the order of the Commissioner (Appeals) and, therefore, the Commissioner of Income Tax had no jurisdiction to revise that order ?

2. Whether, on the facts and in the circumstances of the case, the learned Tribunal was right in law in holding that even on merits, the assessee was entitled to deduction under section 80HH of the Act ?'

2. The assessee is a firm and the relevant assessment year is 1976-77. For this year the Income Tax Officer allowed deduction under section 80HH of the Act and held that all the requirements of the said section had been satisfied. The Commissioner of Income Tax was of the opinion that the order of the Income Tax Officer was erroneous and prejudicial to the interest of revenue and as such he issued notice under section 263 of the Act. He set aside the order of the Income Tax Officer and remanded the matter for a fresh assessment insofar as deduction under section 80HH was concerned. The assessee went up in appeal to the Tribunal and the Tribunal allowed the appeal following the decision of the Allahabad High Court in the case of J.K Synthetics v. CIT : [1976]104ITR255(Guj) . The Tribunal held that since an appeal had been filed against the assessment order, therefore, the Commissioner of Income Tax had no power to revise the order under section 263. At the instance of the department, the above two questions have been referred to us for our opinion.

3. In our opinion the first question has to be answered in favour of the department in view of amendment of section 263(1) Explanation (c) of the Income Tax Act as amended by Finance Act of 1989 and as interpreted by the Supreme Court in the case of CIT v. Shri Arbuda Mills Ltd. : [1998]231ITR50(SC) .

4. As regards the second question referred to us, it has to be decided in favour of the assessee since the finding of the Tribunal is that the assessee has complied with all the conditions in section 80HH and this is a finding of fact.

5. In view of the above, we answer the first question referred to us in favour of the department and against the assessee and the second question in favour of the assessee and against the department.