Sabyasachi Mukharji, J. - (1.) This reference arises out of the proceedings for the rectification of certain assessments relating to the assessment years 1967-68, 1968-69 and 1969-70. The assessee is a public limited company engaged in the manufacture and production of aluminium at different places during the relevant years such as Alupuram, Muri, Belur, Kalwa and Hirakucl. The company produces aluminium ingots and also sheets, circles, foils, extrusions, aluminium powder, paste (pigments), etc., required in various machinery like textile machinery, jute machinery, metallurgical machinery, chemical machinery, earthmoving machinery, irrigation equipment, etc. The relevant previous years for the three assessment years with which we are concerned were 31st December, 1966, 31st December, 1967, and 31st December, 1968, respectively. The ITO completed the assessments without computing the statutory relief allowable to the asses-see under Section 80J(3) of the I.T. Act, 1961, with regard to the assessee's new Foil Mill Unit at Kalwa, and to carry forward such deficiency for adjustment against future profits. The original assessment had been completed by the ITO under Section 143(3) of the Act on 21st March, 1972. It appears from the order of the Appellate Tribunal, where the matter went up finally, that the assessee had not claimed any relief either under Section 84 or under Section 80J for the carry forward of deficiency in the applications under Section 154 in respect of the unit. In the returns also the assessee did not make any claim under Section 84 or under Section 80J and even during the assessment proceedings, the Tribunal observed, no such claim was put up by the assessee before the ITO. This is a finding of fact recorded by the Tribunal in the instant case which has not been challenged. Learned advocate for the assessee, however, drew our attention to the grounds of appeal from the order of the ITO to rectify the assessments under Section 154 wherein the assessee had contended, inter alia, as follows : "(iv) The ITO was wrong to observe that no claim with regard to the deficiency of rebate under Section 84 concerning the Foil Unit was made at the assessment stage because it was duly brought to the notice of the ITO before the assessment order was passed through an application for certificate under Section 197(3), dated 22nd April, 1968, and otherwise,"
(2.) In this connection learned advocate drew our attention to the said note referred to therein in the grounds of appeal which stated as follows : " (2) Capital profit on devaluation,--Where shares were issued for financing a new Foil Mill at Kalwa and a new Smelter at Alupuram, the Government of India stipulated that the foreign share money should be kept abroad to be utilised for purchase of capital equipments abroad. Based on this stipulation import licences were issued with a specific note and as and when payments were made they were recorded in the licence. In this year, i.e., 1966 the rupee was devalued and as a result the balance held abroad at foreign banks appreciated. Such appreciation amounted to Rs. 15,98,102 and this has been referred to in Note No. 1, to our printed balance-sheet. This being a capital profit was transferred to the capital reserve account through the profit and loss appropriation account."
(3.) We are afraid we cannot read either in the said note or anywhere any fact suggesting that in the original assessment the assessee had claimed any relief under Section 80J(3) of the Act. Therefore, it appears to us that apart from the fact that no question challenging any finding of fact by the Tribunal had been posed before us, the finding of the Tribunal that at the time of the assessment no such claim had been made at the hearing stage was a correct one. The original assessments had been completed by the ITO under Section 143(3) of the Act on the 21st March, 1972, where the ITO referred to the claim of relief under Section 84/80J(3) in respect of other units and rejected such claim on the ground of the units' alleged expansion of business. In respect of the ascertainment of statutory relief relating to the new Foil Mill Unit at Kalwa and to carry forward deficiency, the assessment orders did not record any finding as there was no claim or contention made before the ITO. The assessee thereafter submitted a petition under Section 154 on 22nd January, 1974, enclosing therein the computation of relief due under Section 84/80J(3) of the I.T. Act, 1961, for the material years. In the first application for the assessment year 1967-68, the other applications being more or less in identical terms, the assessee stated as follows : "While passing the order under Section 143(3) dated 21st March, 1972, you appear to have forgotten to ascertain the statutory relief or deficiency allowable to the assessee in accordance with Section 84 of the Act with regard to the Foil Unit at Kalwa and to carry the deficiency forward. We, therefore, request you to kindly ascertain the deficiency and let the assessee have the benefit of the carry forward thereof, by using your jurisdiction under Section 154 of the Act. A computation of the relief under Section 84 for the relevant year is annexed herewith.";