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TMI Blog2013 (2) TMI 327X X X X Extracts X X X X X X X X Extracts X X X X ..... patent mistake and not something which can be established by a long drawn process of reasoning on points on which there may conceivably be two opinions. Also see Seshasayee Paper & Boards Ltd. v. Inspecting Assistant Commissioner of Income Tax (1985 (3) TMI 37 - MADRAS HIGH COURT) & Assistant Commissioner of Income-Tax v. Saurashtra Kutch Stock Exchange Ltd. [2008 (9) TMI 11 - SUPREME COURT] Thus in the light of the above decisions of the Supreme Court and this Court, and having regard to the fact that the Assessing Officer has already passed re-assessment order as per the directions of the CIT(Appeals), he was not justified in initiating further proceedings for rectification to impose his own view under the guise of rectification under Section 154 and as such the questions of law raised are answered in favour of the Assessee and against the Revenue. - T.C(A)No.2671 and 2672 of 2006 - - - Dated:- 1-2-2013 - MR. N.PAUL VASANTHA KUMAR AND MRS. S.VIMALA, JJ. For Appellant : Mr.C.V.Rajan for M/s.Subbaraya Aiyar For Respondent : Mr.N.V.Balaji N. PAUL VASANTHAKUMAR, J. JUDGMENT These appeals are filed against the common order of the Inc ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the same was pointed out and only on the ground of scope for doubt the Assessing Officer preferred to disallow the claim. According to the assessee in tax matters, in case of doubt the benefit should go to the assessee. 4. The appeals were disposed of holding that only 90% of the net commission has to be excluded while computing the deduction under Section 8HHC. Against the said order in the appeal, the Revenue filed further appeal before the Tribunal in ITA Nos.1062 and 1063 of 1998. The Tribunal dismissed the appeals on 12.5.2004. Pursuant to the said orders the Assessing Officer passed the final assessment order giving effect to the order dated 15.6.1998 passed by the Commissioner of Income Tax and excluded 90% of the net commission receipts as claimed by the assessee. 5. Thereafter, the Assessing Officer issued notice under Section 154 on 26.6.2000 proposing to rectify his earlier assessment order dated 15.6.1998, which was passed in compliance of the appellate authority's order (ITA). In the rectification notice it was stated that the Commissioner of Income Tax appeals had directed to include only net commission receipts. However, while excluding commission receipts s ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... itted that what is the net commission is to be decided by the Assessing Officer by re-computation and while re-computing, the Assessing Officer committed a mistake and there is no two opinion about the said mistake. Therefore, rectification proceedings initiated was in accordance with law i.e., under Section 154 and there is no error in the common order passed by the Income Tax Appellate Tribunal. 9. We have considered the rival submissions. The Assessing Officer while passing the original assessment order, considered the gross commission receipts for reduction from the profits on the ground that there is an element of doubt. The said order was challenged by the assessee before the Commissioner of Income Tax (Appeals), who allowed the appeals and the said order has become final as appeals preferred before the Income Tax Appellate Tribunal was also dismissed and the said order of the Commissioner of Income-Tax (Appeals) was also implemented. There is no dispute regarding the said aspect. 10. The issue having been agitated and final decision having been implemented, the action of the Assessing Officer to re-open the issue on the ground of rectification, is not coming within the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hat there was a mistake apparent from the record of the assessments of the first respondent." (b) The said issue was again considered by this Court in the decision reported in (1986) 157 ITR 342 (Mad) (Seshasayee Paper Boards Ltd. v. Inspecting Assistant Commissioner of Income Tax) wherein this Court held thus, "When the Income-tax Officer gave effect to the direction of the Tribunal by making the computation by order dated December 7, 1977, undoubtedly he had correctly interpreted the order that, according to the Tribunal, the assessee was entitled to the benefit of section 80J. The attempt on the part of the Inspecting Assistant Commissioner now to take away the relief under section 80J virtually has the effect of amending the order of the Tribunal by reversing the view which is taken by the Tribunal, viz., the assessee is entitled to relief under section 80J of the Act. It was vehemently argued before us that section 80J(1A) of the Act has now been held to be valid by the Supreme Court. While this fact cannot be disputed, it is equally true that the decision of the Supreme Court does not automatically have the effect of vacating the order of the Tribunal which has been s ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... quashed." (Emphasis Supplied) Special Leave petition filed before the Hon'ble Supreme Court in SLP(C)No.8578 and 8579 of 1991 was dismissed by order dated 20.11.1991. (c) Again the Supreme Court considered the said issue in (2008) 305 ITR 227 (SC) : (2008) 14 SCC 171 (Assistant Commissioner of Income-Tax v. Saurashtra Kutch Stock Exchange Ltd.) in paragraphs 30 it is held as follows: "30. ......... An error apparent on the face of the record means an error which strikes on mere looking and does not need long-drawn-out process of reasoning on points where there may conceivably be two opinions. Such error should not require any extraneous matter to show its incorrectness. To put it differently, it should be so manifest and clear that no court would permit it to remain on record. If the view accepted by the court in the original judgment is one of the possible views, the case cannot be said to be covered by an error apparent on the face of the record." 12. In the light of the above decisions of the Supreme Court and this Court, and having regard to the fact that the Assessing Officer has already passed re-assessment order as per the directions of the Commissioner o ..... X X X X Extracts X X X X X X X X Extracts X X X X
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