TMI Blog2013 (3) TMI 570X X X X Extracts X X X X X X X X Extracts X X X X ..... T] distinguished. - Tax Case (Appeal) Nos.1305 and 1306 of 2005 - - - Dated:- 22-6-2012 - MRS. CHITRA VENKATARAMAN AND MR. K. RAVICHANDRA BAABU JJ. For petitioner: Mr. C.V. Rajan For respondent: Mr. T.R. Senthil Kumar Standing Counsel for Income Tax JUDGMENT (Judgment of the Court was made by CHITRA VENKATARAMAN,J.) The following are the questions of law raised by the assessee in these appeals filed against the order of the Tribunal relating to the assessment years 1989-90 and 1991-92. 1. Whether on the facts and the circumstances of the case, the Tribunal was right in law in holding that since the assessee has not claimed that the rate of tax applicable to it as per provisions of Part II of Schedule I of the We ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 5 and submitted that it had incurred loss as per the revised order of Income Tax dated 19.12.1991 and had not declared the dividend for the year ending 31.3.1989 and consequently it sought for revising the assessment on the ground that the rate to be adopted for wealth tax would be nil. The said contention was rejected by the Deputy Commissioner of Income Tax in his order dated 23.2.1996. Aggrieved by the same, the assessee went on appeal before the Commissioner of Income Tax (Appeals), who pointed out that the assessee had sustained a loss for the year 1990-91 and even if depreciation is excluded there would be a loss for the assessment year 1990-91. So too for the assessment year 1989-90. As regards the assessment year 1988-89, if the dep ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t reported in 143 ITR 269 (T.Manickavasagam Chettiar Vs. Commissioner of Income Tax) and 149 ITR 525 (Commissioner of Income Tax Vs. Sundaram Textiles Limited). 5. Per contra, learned Standing Counsel appearing for the Revenue pointed out to the provisions of Section 35 of the Wealth Tax Act and submitted that the provision to rectify a mistake as available under Section 35 is restricted to any mistake apparent from the record. However, the facts regarding the loss suffered by the assessee and non-declaration of dividend were not available before the Wealth Tax Officer at the time of making assessment. When these facts did not form part of the record, admittedly, subsequent to the assessment it was not open to the asseessee to seek for re ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... do not find that the said decision would come to the rescue of the assessee since the relief granted by the Assessing Officer under Section 80T of the Income Tax Act, 1961 was with reference to the materials which were available on record as contemplated under Section 154. The relief granted in the original assessment was a mistake which was sought to be rectified under Section 154 by withdrawing the benefit granted under Section 80T. In considering this claim this court referred to the decision of the Apex Court reported in (1961) 41 ITR 732 (SC) (Income Tax Officer Vs. Ashok Textiles Ltd.,) which considered Section 35 of the Indian Income Tax Act, 1922 which corresponds to Section 154 of the Income Tax Act , 1961. Pointing out the differ ..... X X X X Extracts X X X X X X X X Extracts X X X X
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