S.N Rotho, A.M:— This appeal has been filed by the assesse against the order dt. 1-9-1984 of the CIT(A) relating to the asst. yr. 1977-78 the previous year of which ended on 28-6-1976.
2. The first seven grounds taken in this appeal state that the CIT(A) erred in holding that the assessee company was not entitled to relief under s. 80J of the Act during the year under consideration merely on the ground that it had no positive income in the new industrial unit No. II at Barrackpore. The assessee is a limited company deriving income from the manufacture and sale of steel wire. It claimed relief under s. 80J of the Act in respect of its Barrackpore unit which it called Unit II. The ITO calculated some relief under s. 80J and observed that the same should be carried forward as the said Unit No. II suffered a loss during the year under consideration. The assessee appealed to the CIT(A) contending that the figure of relief arrived at by the ITO was low. The CIT(A) considered the matter and withdrew the relief given by the ITO on the ground that the assessee was not entitled to any relief as the new unit did not have any taxable profit. In this matter, he followed his order passed for the earlier year.
3. In the asst. yr. 1976-77 the CIT(A) had given a similar decision against which the assessee had come up in appeal before the Tribunal. The Tribunal considered the claims of the assessee as well as the Revenue and decided the issue in favour of the revenue by their order dt. 24-3-1986 in ITA No. 2010 (Cal)/84. Subsequently, the assessee had filed a miscellaneous application for the same assessment year claiming that the aforesaid order dt. 24-3-1986 of the Tribunal was erroneous and deserved to be recalled. The Tribunal heard the aforesaid order dt. 24-3-1986 of the Tribunal was assessee as well as the revenue on the said miscellaneous application numbered M.A No. 72 (Cal)/86 and by their order dt. 29-10-1986 rejected the application holding that there was no mistake in the original order dt. 24-3-1986 of the Tribunal which required rectification.
4. Shri N.K Poddar, the ld. representative for the assessee, urged before us that the earlier order of the Tribunal was erroneous and required reconsideration. He stated that there was indeed a loss even in the commercial sense in Unit No. II during the year under consideration. However, he pointed out that paragraph 7 of the circular No. 5-P dt. 9-10-1967 of the CBDT clearly envisaged that the relief under s. 80J has to be allowed even in a year in which there is a loss in the new unit. In particular, he read out the sentence which says “where there are no profits and gains, or where there is a loss, the deficiency in relation to an assessment year is to be taken to be an amount calculated at six per cent per annum on the capital employed in the undertaking during the relevant previous year”. He stated that this circular was not pointed out to the Tribunal at the time of hearing of the appeal for the asst. yr. 1976-77 and this fact has been mentioned in paragraph 3 of the order dt. 29-10-1986 of the Tribunal on the miscellaneous application referred to earlier. He urged that in the present appeal the aforesaid circular has to be considered so that the matter has to be differently decided Again, he relied on the following decisions for the proposition that an assessee is entitled to relief under s. 80J even if there is a loss during the particular year:
(i) Addl. CIT v. Sheetalaya (1979) 117 ITR 658 (All)
(ii) Indian Aluminium Co. Ltd. v. CIT (1980) 122 ITR 660 (Cal)
iii) CIT v. Bluemount Ceremics Ltd. (1980) 18 CTR (Mad) 1 : (1980) 123 ITR 385 (Mad)
(iv) CIT v. Ennore Foundries Ltd. (1985) 45 CTR (Mad) 321 : (1985) 151 ITR 464 (Mad).
5. Next, he cited the decisions in the cases of Elerman Lines Ltd. v. CIT 1972 CTR (SC) 71 : (1972) 62 ITR 913 (SO and Navanit Lal Javeri (1965) 56 ITR 158 (SC) in support of the proposition that a circular issued by the CBDT is binding on the ITO. He explained that the aforesaid four cases did not directly decide the matter in the way the circular had stated but in these four cases the deficiency of the earlier years in which the new unit suffered losses was determined and set off in a subsequent year in which the assessee had profits. Shri N.K Poddar urged that the aforesaid circular directly supports the stand of the assessee while the aforesaid four cases indirectly, do so.
6. Shri S.K Lahiri, the ld. representative for the department, on the other hand, supported the order of the CIT(A). He stated that the Tribunal has considered this issue in the earlier year and has given a particular interpretation of s. 80J(3) of the Act and so the present appeal has to be decided in the light of the same decision, especially because no new facts have come into existence and the matter is now before the Hon'ble High Court. In this connection, he referred to the decision in the case of CIT v. B. Devaraj (1969) 73 ITR 1 (Mad) wherein it is stated that it is proper and desirable for the Tribunal not to contradict itself and come to a diametrically opposite view later as it would be embarassing in general. Similarly, he pointed to the decision in the case of CIT v. L.G Ramamurthi 1911 CTR (Mad) 416 : (1977) 110 ITR 453 (Mad) for the proposition that no Tribunal of fact has any right or jurisdiction to come to a conclusion entirely contrary to the one reached by another Bench of the said Tribunal on the same facts, because if it is so done, then it will not only shake the confidence of the public but will also totally destroy such confidence. The result of this will be conclusions based on the whims and fancies of the individuals and would cease to be objective. Regarding the circular relied on by Shri N.K Poddar, he urged that the said circular is not binding because it has travelled beyond the language of the Act as given in s. 80J(3). The Tribunal applied its mind and gave a particular interpretation relating to s. 80J(3). In such matters of judicial interpretation, he stated that the judicial interpretation will override any circular issued by the Board. In this connection, be relied on the decision in the case of A.L.A Firm (1976) 102 ITR 622 (Mad) wherein it has been held that the circular of the CBDT has no binding force on the judicial power of the ITO. He also referred to the decision in the case of State Bank of Travancore (1986) 50 CTR (SC) 290 - (1986) 158 ITR 102 (SC) wherein the Supreme Court observed at page 139:
“The earlier circular being executive in character cannot alter the provisions of the Act”.
7. Shri N.K Poddar replied that the case of State Bank of Travancore was considered by the Patna High Court in the case of CIT v. Sriram Agarwal (1986) 54 CTR (Pat) 367 : (1986) 161 ITR 302 (Pat) and it was held, after considering the decision on the case of State Bank of Travancore that the circular issued by the CBDT was binding on the ITO. In this connection, he also referred to the decision in the case of Hindustan Aeronautics Ltd. (1981) 22 CTR (Kar) 91 : (1981) 132 ITR 461 (Kar) in which a similar view has been taken.
8. We have carefully considered the contentions of both the parties as well as the facts on record. We have gone through the order dt. 24-3-1986 of the Tribunal as well as their order dt. 29-10-1986 on the miscellaneous application. We do not find any good reason to differ from the conclusion arrived at therein. The four cases relied on by the ld. Counsel for the assessee, namely, Sheetalya (supra) were not, direct authorities in support of the interpretation sought to be placed on s. 80J(3) by the ld. Counsel for the assessee. We are inclined to agree with the contention of the revenue that paragraph 7 of the circular dt. 9-10-1967 has gone beynod the jurisdiction of the CBDT when it envisages granting of relief under a section in Chapter VI of the Act even when there is no gross total income of the new unit. The case of Sriram Agarwal (supra) was concerned with the case of penalty and so that decision was given in a different context. Similar was the case with Hindustan Aeronatics Ltd. (supra) which was dealing with a case of revision by the CIT. The cases of Navanit La Uaveri (supra) and Ellerman Lines Ltd. (supra) were dealing with different matters. In the case before us, the Legislature had given a concession to the assessee on the fulfilment of certain conditions under certain specified circumstances. These conditions and circumstances had to be specifically and strictly fulfilled. Otherwise, the benefit cannot be given. This is a settled principle of law. As has been observed by the Tribunal in their order dt. 24-3-1986, there is no reference to a case where a new unit suffers a loss. Consequently, we uphold the decision of the CIT(A) on this point and reject these grounds. We find support for this decision of ours from the cases of S. Devaraj (supra), and State Bank of Travancore (supra).
9. The next ground states that the computation of relief under s. 80J was low. This ground is consequential to the first seven grounds. As we have rejected the first seven grounds, this ground does not survive for consideration and so this is rejected.
10. Ground No. 9 relates to the assessee's claim for initial depreciation. Ground No. 10 relates to the assessee's claim for investment allowance. During the previous year under consideration there was a change of law inasmuch as investment allowances was made applicable while initial depreciation was withdrawn. The assessee claimed investment allowance as per the amended law on all the additions to machineries. The ITO disallowed the entire claim on the ground that the machineries were installed prior to 1-4-1976 and so they were not entitled to investment allowance. The assessee appealed to the CIT(A) and contended that the claim for investment allowance was wrongly disallowed. The CIT(A) rejected this contention on the ground that the assessee did not make any claim before the ITO. The assessee took an additional ground before the CIT(A) claiming initial depreciation on those very assets. The CIT(A) declined to admit the additional ground. We have heard Shri N.K Poddar who urged that the rejection of the assessee's claim on both the points was not justified. He relied on the decisions in the case of Madhu Jayanti (1985) 48 CTR (Cal) 151 : (1985) 154 ITR 277 (Cal), CIT. v. Gordhandas Jerambhai (1985) 49 CTR (Cal) 7 : (1985) 154 ITR 288 (Cal) and Commissioner Of Wealth Tax, Gujarat v. Vimlaben Vadilal Mehta (Smt). (1983) 37 CTR (SC) 280 : (1984) 145 ITR 11 (SC). We have also heard Shri S.K Lahiri who supported the order of the GIT (A). In our opinion, the assessee is entitled to succeed on this ground. There was a change in the law during the previous year under consideration. From the statements filed before us we find that the assessee had given particulars regarding the date of acquisition and the cost of the machineries. We, therefore, vacate the order of the CIT(A) on this point and restore the matter to the file of the ITO with a direction to examine the assessee's claim for investment allowance and dispose of the same in accordance with law after giving a reasonable opportunity of being heard to the assessee.
11. In the result, the appeal may be treated as partly allowed for statistical purposes.