SENGUPTA, J. - (1.) IN this reference under s. 256(2) of the IT Act. 1961 ('the Act') for the asst. yr. 1982-83 the following question of law has been referred to this Court. "Whether, on the facts and in the circumstances of the case, the Tribunal is justified in law in holding that it cannot be said that there was mistake apparent from records in not computing income under s. 41(1) of the IT Act in respect of proportionate subsidy received during the period relevant to the asst. yr. 1982-83 against the cost of generator installed on 19th March, 1980?"
(2.) THE fact briefly stated are that the assessee is a company. In this case, the ITO made rectification under s. 154 of the Act as, according to him, subsidy granted to the assessee by the Government to set up a generator was to be deducted while taking actual cost under s. 43(1) of the Act. As this was not done in the original assessment order, he rectified the order and allowed depreciation after deducting subsidy granted to the assessee. On appeal, the CIT (A) following the decision of the Tribunal. Hyderabad Bench, in the case of ITO vs. S.V. Earths & Chemicals (P) Ltd. (1986) 18 ITD 196 and his own order in the case of the assessee itself for the preceding assessment years, held that the subsidy could not be deducted while working out actual cost and assessment could not be rectified under s. 154.
(3.) THE Department being aggrieved came up in appeal before the Tribunal Both the parties fairly conceded that an identical issue had come up before the Tribunal for consideration in the case of the assessee itself for the asst. yr. 1981-82 in IT Appeal no.2149 (Cal) of 1987 and the 'C' Bench of the Tribunal, Calcutta vide its order dt. 2nd May, 1989 held that similar mistake in not deducting subsidy was not a mistake apparent from the record and, therefore, the CIT (A) was justified in cancelling rectification order passed by the ITO. The facts and the circumstances being identical, in line with the order dt. 2nd May, 1989, the Tribunal upheld the action of the CIT (A).;