1. The above reference under section 256(1) of the Income-tax Act, 1961, is made to this court, at the instance of M/s. Vinnyallora Industries, a company incorporated on October 21, 1970. The reference relate to the assessment years 1972 and 1973. The question is as follows :
'Whether, on the facts and in the circumstances of the case, the loans from approved financial institutions are 'capital' employed for the purpose of computation of relief under section 80J of the Income-tax Act, 1961, read with rule 19A of the Income-tax Rules, 1962 ?'
2. Rule 19A referred in the question was held by this court in a writ petition as ultra vires the Income-tax Act, 1961, in Warner Hindustan Ltd. v. ITO : 134ITR158(AP) . Similar decision was rendered by the Allahabad High Court and other High Courts in Century Enka Ltd. v. ITO : 107ITR909(Cal) , Madras Industrial Linings Ltd. v. ITO : 110ITR256(Mad) and Kota Box Mfg. Co. Ltd. v. ITO : 123ITR638(All) . Parliament amended and incorporated sub-section (1A) to section 80J by the Finance (No. 2) Act of 1980, with effect from April 1, 1972.
3. Learned Counsel for the assessee submitted that if the reference is to be answered from the standpoint of the statute, as on today, he has little to argue, in support of the reference and, therefore, argued, it is not permissible for this court to have recourse to sub-s. (1A) of section 80J, in answering the reference. This argument was advanced in two parts : It was argued, the Tribunal did not look into sub-s. (1A) to section 80J whilst making the reference for it was not in the statute and, therefore, this court in answering the question cannot have recourse to that provision. This argument is advanced as a constraint on jurisdiction and counsel elaborated the plea to state such is the law, in answering the question. The second limb of the argument is submitted with reference to sub-section(2) of section 254 of the Income-tax Act, 1961. This part of the plea is elaborated. For rectification of an inadvertent mistake, after four years, it is argued, a mistake cannot be rectified. This was suggested, yet, as another constraint in answering the question. The two facts of the argument are suggested for not relying on sub-section(1A) incorporated in section 80J of the Act.
4. We have consider the two aspects or standpoints and considered from any perspective, it is not possible to agree with the contention raised by learned counsel for the assessee. If an answer is required, it is found in the case in Traco Cable Co. Ltd. v. CIT : 138ITR385(Ker) where sub-section(1A) of section 80J was considered. We think, no useful purpose is served in further ramification of the subject.
5. Learned counsel for the assessee since, at the outset, stated, that under sub-section(1A) of section 80J, he has little to argue in support of the reference and, therefore, the question is answered against the assessee and in favour of the Revenue. No costs.