- (1.) THE Tribunal, Jaipur, vide order dt. 2nd Sept., 1988 rejected the application moved by the assessee under S. 256 (1) of the IT Act, the asessee prayed that the following questions may be framed and the matter may be referred to the High Court for determination on the points of law : 1. Whether the learned Tribunal was right in law in holding that a sum of Rs. 2,35,491.17 being expenses for levelling and adjustment of iron ore incurred by the assessee and debited by the assessee to the account. "levelling and adjustment expenses" was not of revenue nature but was capital expenditure? 2 Whether, the learned Tribunal was right in law in holding that a sum of Rs. 1,79,050 being expenses for repairing of roads and debited to the account Road Repairing A/c was not of revenue nature but was capital expenditure?" 3. Whether, the learned Tribunal was right on facts and had material to hold that the impugned expenditure was expenses on levelling and development of roads for new mines particularly when the assessee firm does not own any mines and had taken only a contract to execute works for exacting, sizing, sorting of iron ore at Thakurani Mines and transport the same for delivery at stock pile at Thakurani railway siding in terms of agreement dated 18th Sept., 1981 between Orissa Minerals Development Company Ltd. (Now a Government Undertaking) and the assessee firm? 4. Whether, the order of the learned Tribunal is not perverse and is not vitiated for arriving at wrong findings? 5. Whether, the learned Tribunal was right in law in holding that the assessee firm is entitled to deduction under S. 35E 1/10th of the expenses of 4,14,541.00 ?
(2.) THE petitioner has moved this application now under S. 256 (2) of the IT Act and prayed therein that the Tribunal may by directed to draw the statement of the case and refer the questions of law as referred to in the application. Mr. Kasliwal appearing on behalf of the assessee, has invited our attention to the agreement, which has been executed between the assessee and the Orissa Mineral Development Company Ltd. Under the terms of the agreement the assesses is a contractor and he has to execute the work for excavating, sizing, sorting of iron ore at Thakurani Mines and transport the same for delivery at stock pile at Thakurani raillway siding.
(3.) THE main contention of the assessee is that the Tribunal has held that in applying the provisions of S. 35E of the IT Act, according to the petitioner, S. 37 of the Act applies.;