Mr. D. K. Jain, J. ( 1 ) AT the instance of the revenue the following questions of law for the assessment year 1975-76 have been referred for the opinion of this Court under Section 256 (1) of the Income-tax Act, 1961 (for short the Act ). "1. Whether on the facts and in the circumstarnces of the case, the Tribunal is right in law in holding that the CAT had no jurisdiction to revise u/s 263 of the Income Tax Act, 1961 the order of the Income-tax Officer dated 28-7-1978 which had merged into the appellate orders of the CIT (Appeals) dated 28-2-79 and of the Tribunal dated 1-5-80? 2. Whether on the facts and in the circumstances of the case, the Tribunal is right in law in holding that the amount of Rs. 8,26,700. 00 should not be excluded for purposes of capital employed under Rule 19a of the Income-tax Rules for purposes of deduction allow- able u/s 80j of the Income-tax Act 1961 for the assessment year 1975-76?" ( 2 ) WHILE completing assessment on the respondent/ assessee for the previous year ended 30 June 1974, relevant to the assessment year 1975-76, the Income-tax Officer allowed some relief under Section 80j of the Act. The assessce appealed against the relief allowed to it under the said Section and claimed that it was entitled to a larger deduction under the said Section by computing the capital employed in the new industrial undertaking without excluding the borrowed capital, as was done by the Income-tax Officer. Assessee s claim was accepted by the Commissioner of Income-tax (Appeals) as also by the Tribunal in further appeal by the revenue. ( 3 ) SUBSEQUENTLY the Commissioner of Income-tax, by invoking his jurisdiction under Section 263 of the Act issued anotice to the assessee to show cause as to why the relief granted under Section 80j of the Act be not re-computed as the relief under the said Section had been wrongly allowed by the income-tax Officer without going into the facts about the admissibility of the claim on certain assets and also whether there was any commercial production in the relevant year. The assessee objected to the proceedings initiated by the Commissioner and it was submitted that there was nothing erroneous and prejudicial to the interest of the revenue in the order of the Income-tax Officer and further the Commissioner had no jurisdiction under Section 263 of the Act to interfere with the order of the Income-tax Officer after the same had merged in the appellate orders of the Commissioner (Appeals) and the Tribunal. ( 4 ) THE Commissioner did not agree with the submissions made by the assessee. He found that the company had purchased some extra land for Rs. 5,89,563. 00 adjacent to the existing land and constructed a building thereon at a cost of Rs. 2,37,137. 00 and that these items were transferred to the building account in the previous year relevant to the assessment year 1976-77and were also actually used in the industrial undertaking during the said assessment year. The Commissioner felt that the Income-tax Officer had wrongly computed the relief under Section 80j of the Act by taking into account the entire assets including the said two new assets as being used for purposes of the industrial undertaking without making any enquiry as to whether the said land and building had infact been put to use in the relevant assessment year. He was, therefore, of the view that the action of the Income-tax Officer in allowing relief undersection 80j of the Act by including the cost of extra land and the cost of building (totalling Rs-8,26,700) as capital employed was both erroneous and prejudicial to the interest of the revenue. Accordingly, the Commissioner set aside the assessment and directed the Income-tax Officer to make the assessment de novo. ( 5 ) BEING aggrieved, the assessee preferred an appeal to the Tribunal. The Tribunal held that the entire claim made by the assessee under Section 80j of the Act being the subject matter of appeal before the Commissioner (Appeals) and the Tribunal, the order of assessment had merged in the appellate orders and, therefore, the Commissioner had no jurisdiction under Section 263 of the Act to revise the assessment already framed. On merits, the Tribunal noticed that a similar issue had been decided by various High Courts in (1959) 35 ITR 651, Jayaram Mills v. CIT (Mad), (1978) 113 ITR 109 , CIT v. Indian Oxygen Ltd. (Cal), (1978) 114 ITR 459 (Kar) Ravi Machine Toolsv. On merits, the Tribunal noticed that a similar issue had been decided by various High Courts in (1959) 35 ITR 651, Jayaram Mills v. CIT (Mad), (1978) 113 ITR 109 , CIT v. Indian Oxygen Ltd. (Cal), (1978) 114 ITR 459 (Kar) Ravi Machine Toolsv. CIT, (1978) 115 ITR 879 (Guj), CIT v. Cibatul, (1980) 122 ITR 203 (Pandh), CIT v. Mohan Meakin Breaweries and (1979) 119 ITR 164 (Born), CIT v. Alcock Ashdown, wherein it was held that the moment the capital is utilised for the purpose of acquiring any asset for a business, such capital becomes employed in the business, whether the asset itself is actually used in the business or not, so far as the capital is concerned, it continues to be employed in the business. Following the said decisions, the Tribunal held that the cost of the two new assets in question should not be excluded for computing the capital employed under Rule 19a of the Income-tax Rules, 1962 for the purposes of deduction allowable undersection 80j of the Act. It is against this order that, at the instance of the revenue, the Tribunal has referred the aforementioned questions. ( 6 ) WE first take up question No. 2 for the sake of convenience. The short question requiring consideration is whether for the purpose of deduction under Section 80j of the Act, the value of the assets under installation or work inprogress could be included in the capital employed in the business? In other words whether the actual user or non-user of the asset acquired is material for the purpose of computation of relief under Section 80j of the Act? ( 7 ) ON behalf of the assessee reliance has been placed on the following decisions of various Courts, in addition to the judgments relied upon by the Tribunal and referred to above, which fully support assessee s view point:- 1. (1988) 174 ITR 697 (Mad) CIT v. Southern Agrifurane Industries; 2. (1988) 169 ITR 562 (Born) CIT v. Indian Smelting and Refining Co. ,; 3. (1986) 162 ITR 163 (Ker) Periyar Chemicals v. CIT; 4. (1987) 165 ITR 546 (Cal) CIT v. Union Carbide India Ltd. , 5. (1989) 179 ITR 519 (Pandh), CIT v. Haryana Tube Manufacturing Co. , 6. (1989) 179 ITR 536 (Pandh), CJTv. Janak Steel Tubes, 7. (1989) 179 ITR 371 (Pandh), CITv. Gopichand Textile Mills, 8. (1990) 181 ITR214 (Bom),cjtv. (1986) 162 ITR 163 (Ker) Periyar Chemicals v. CIT; 4. (1987) 165 ITR 546 (Cal) CIT v. Union Carbide India Ltd. , 5. (1989) 179 ITR 519 (Pandh), CIT v. Haryana Tube Manufacturing Co. , 6. (1989) 179 ITR 536 (Pandh), CJTv. Janak Steel Tubes, 7. (1989) 179 ITR 371 (Pandh), CITv. Gopichand Textile Mills, 8. (1990) 181 ITR214 (Bom),cjtv. Century Spinningand Manufacturing Co. , Ltd. ; 9. (1989) 177 ITR 20 (Bom),cjtv. Elpro International; 10. (1980) 123 ITR 722 (Mad), CITv. Madras Wire Products; 11. (1984) 148 ITR 70 (Born), CITv. Boehringer Knoll; 12. (1986) 161 ITR 449 (Born), CITv. Advani Oerlikon, 13. (1985) 156 ITR 860 (Born), CITv. Hindustan Polymers; 14. (1987) 166 ITR 35 (Mad) CITv. Sundaram Industries, 15. (1987) 163 ITR 674 (Mad), CIT v. South India Viscose. ( 8 ) WE have gone through the provisions contained in Section 80j of the Act and the judgments relied upon by the assessee. We are in respectful agreement with the consistent view expressed by various High Courts on the point in these judgments. No reason much less a compelling reason has been brought to our notice by learned Counsel for the revenue to persuade us to depart from the view taken by the other High Courts in the said judgments. In fact, learned Counsel for the revenue admitted that no High Court has expressed a view contrary to the one taken in the aforesaid authorities. In this view of the matter, following the said judgments, we endorse the view taken by the Tribunal that the value of the two assets in question cannot be excluded for purposes of computing the capital employed under Rule 19a for the purposes of deduction allowable under Section 80j of the Act. ( 9 ) AS regards the first question, learned Counset for both the parties submitted that in view of the insertion of the words "on or before or after the 1st day of June 1988" by the Finance Act 1989 w. e. f. 1st June 1988 to clause (a) of Explanation to Section 263, as substituted by the Finance Act 1988, answer to the question should be given in the negative. In view of the stand of the parties and the fact that we have answered question No. 2 in favour of the assessec, we feel that on the facts of the instant case it is not necessary for us to go into the issue ingreater detail and we leave the matter to be examined in depth in some other appropriate case. ( 10 ) IN the result, question No. 1 is answered in the negative, that is, in favour of the revenue and against the assessee and question No. 2 is answered in the affirmative, that is, in favour of the assessce and against the revenue, with no order as to costs.