Nazir Ahmad, J. - (1.) VARIOUS statements of the cases have been submitted by the Income-tax Appellate Tribunal, Calcutta (hereinafter referred to as "the Tribunal"), in all the six taxation cases regarding various questions of law for the opinion of this court.
(2.) IN Taxation Cases Nos. 185 and 186 of 1971, the Tribunal, E-Bench, Calcutta, has referred to the following questions of law under Section 256(1) of the INcome-tax Act, 1961 (hereinafter referred to as "the Act"), relating to the assessment year 1962-63 for the opinion of this court : "1. Whether, on the facts and in the circumstances of the case, the amount representing 60% of the kyanite profits for the period February 1, 1955, to August 31, 1961, due under the compromise decree was allowable deduction in ascertaining the assessee's sprofits for the assessment year 1962-63? 2. Whether, on the facts and in the circumstances of the case, the claim of the assessee for initial depreciation under Section 32(1)(iv) in respect of buildings whose construction commenced before March 31, 1961, but was completed after March 31, 1961, was proper ?" In Taxation Cases Nos. 205 and 206 of 1971, the Tribunal "E" Bench, Calcutta, has referred the following questions of law under Section 256(2) of the Act, relating to the assessment year 1962-63 for the opinion of this court : "1. Whether, on the facts and in the circumstances of the case, the deletion of the addition made by the Income-tax Officer of Rs. 1,26,522 and Rs. 1,18,489 in respect of the estimated liability for mining lease, rent and royalty for the years 1959 and 1961 is legal and proper? 2. Whether, on the facts and in the circumstances of the case, the claim of Rs. 14,43,524 in respect of the internal development is a revenue expenditure ? 3. Whether, on the facts and in the circumstances of the case, the assessee is entitled to export profit rebate in respect of kyanite business for the assessment year in question ?" In Taxation Cases Nos. 57 and 58 of 1972, the Tribunal, "A" Bench, Calcutta, has referred the following questions of law under Section 256(2) of the Act, relating to the assessment year 1963-64 for the opinion of this court : "1. Whether, on the facts and in the circumstances of the case, the Tribunal are justified in holding that the expenditure of Rs. 15,18,230 spent on account of internal development expenses is a revenue expenditure? 2. Whether, on the facts and in the circumstances of the case, the Tribunal are justified in allowing initial depreciation within the meaning of Section 32(1)(iv) of the Income-tax Act, 1961, and in holding that the Appellate Assistant Commissioner was correct even on giving direction in that regard ?" It may be pointed out that in the statement of the case in Taxation Cases Nos. 57 and 58 of 1972, the questions have not been specifically pointed out at one place. The questions have been referred in view of the directions of this court under Section 256(2) of the Act and question No. 1 has been referred in paragraph 6 of the statement of the case without giving any question number and question No. 2 has been referred in paragraph 10 of the statement of the case without giving question number and so I have given the question number as it appears in the statement of the case for the sake of convenience of discussions. From the aforesaid questions, it is evident that question No. 2 in Taxation Cases Nos. 185 and 186 of 1971 and question No. 2 as mentioned in paragraph 10 of the statement of the case in Taxation Cases Nos. 57 and 58 of 1972 are approximately similar and so I am taking up this common question in the two assessment years.
(3.) IN Taxation Cases Nos. 57 and 58 of 1972 which relate to the assessment year 1963-64, the Tribunal has clearly pointed out in paragraphs 10 and 11 of the statement of the case at pages 101 and 102 that the question referred in paragraph 10, was referred in view of the direction of this court. IN paragraph 11 at page 102, the Tribunal has specifically pointed out that in the application submitted under Section 256(2) of the Act, the Additional Commissioner of INcome-tax, Bihar, Patna, has stated that the above question was specifically raised before the Tribunal but they failed to deal with it in their order dated October 21, 1971, whereby they rejected the first three questions. It has been stated by the Tribunal that the Tribunal dealt with that question separately in the statement of the case dated December 8, 1971, and referred the following question for the opinion of this court under Section 256(1) of the Act and the question referred for the assessment year 1963-64 was as follows : "Whether, on the facts and in the circumstances of the case, the claim of the assessee for initial depreciation under Section 32(1)(iv) of the INcome-tax Act, 1961, in respect of the buildings whose construction commenced before March 31, 1961, but was completed after March 31, 1961, was proper ?" The aforesaid statement of the case was forwarded by the Tribunal in R.A. Nos. 300 and 301 of 1971-72 in I.T.A. Nos. 6973 and 6286 of 1968-69 relevant to the assessment year 1963-64. The question referred as mentioned in paragraphs 11 and 12 of the statement of the case in Taxation Cases Nos. 57 and 58 of 1972, has also been disposed of by the judgment of this Bench dated August 30, 1984, in Taxation Cases Nos. 43 and 44 of 1972 (Addl. C1T v. Indian Copper Corpn. Ltd. [1985] 155 ITR 529). The records of Taxation Cases Nos. 43 and 44 of 1972 show that the statement of the case was submitted by the Tribunal, "A" Bench, Calcutta, in the matter of the assessment of the assessee, M/s. Indian Copper Corporation Limited Ghatshila, in R. A. Nos. 300 and 301 (Cal) of 1971-72 in I. T. A. Nos. 6973, and 6286 of 1968-69 relating to the assessment year 1963-64, referring the question, as mentioned in paragraph 11 of the statement of the case in the same R. A. Nos. 300 and 301 (Cal) of 1971-72, as it appears from Taxation Cases Nos. 57 and 58 of 1972. This Bench disposed of Taxation Cases Nos. 43 and 44 of 1972 and disposed of the question referred for the assessment year 1963-64 by the judgment dated August 30, 1984. I have perused the original records of this judgment which is also reported in the case of Addl. CIT v. Indian Copper Corporation Limited [1985] 155 ITR 529. For the detailed reasons mentioned in that judgment, we have held that Section 32(1)(iv) of the Act lays down that an assessee shall be entitled to depreciation of a building at a certain percentage in the case of any building which has been newly erected after March 31, 1961, where the building is used solely for the purpose of residence of the persons employed in the business and erection in Section 32(1)(iv) must relate only to the completion of the process of erection without any reference to the date of commencement and that in granting initial depreciation under Section 32(1)(iv) of the Act, the date of commencement of the erection of the buildings of the assessee is entirely irrelevant. Thus, in the assessment year 1963-64, the question has already been decided by this Bench on the basis of the reference under Section 256(1) of the Act made by the Tribunal before the question was called for by this court and was referred to this court in view of the direction of this court in paragraph 10 of the order. The question as framed by the High Court is not in proper form and that it should have been in the form as referred in paragraph 11 of the statement of the case at page 102 of the paper book. The same question has been referred as question No. 2 in Taxation Cases Nos. 185 and 186 of 1971. ;