TMI Blog1999 (11) TMI 42X X X X Extracts X X X X X X X X Extracts X X X X ..... section 35B(1)(b)(viii) of the Income-tax Act the said claim cannot be entertained as the order of the Income-tax Officer sought to be rectified had merged with the order of the Appellate Tribunal ? 2. Whether, on the facts and in the circumstances of the case, is not the assessee entitled to be allowed its claim for deduction under section 35B(1)(b)(viii) of the Income-tax Act by rectification of the assessment order for the year 1980-81 ?" The factual position, which is also undisputed, is as follows : The assessee is a company carrying on business as engineers and contractors. During the course of assessment for the assessment year 1980-81, the assessee had claimed deductions under section 35B(1)(b)(iv) and (vii) of the Act. The Ass ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... thereof) was Rs. 11,40,189, The Assessing Officer rejected the petition by order dated January 23, 1989. An appeal was preferred before the Commissioner of Income-tax (Appeals) against the order rejecting the application for rectification under section 154. The assessee's stand was that when the materials were available in the assessment record for grant of relief, the application under section 154 was clearly maintainable and relief could not be refused merely on the ground that the assessee had omitted to claim the same originally. The Commissioner of Income-tax (Appeals) dismissed the appeal by his order dated May 17, 1990. The assessee preferred an appeal before the Tribunal. By order dated August 11, 1995, the appeal was dismissed on ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... not been entertained. Though the question of merger of the assessment order with the appellate order was noticed by the Tribunal, learned counsel for the parties submitted that the said question is really of academic interest, when the applicability of section 154 of the Act is decided. Section 154 deals with rectification of mistakes. The said provision, at the relevant time, so far relevant, reads as follows : "154. Rectification of mistake.---(1) With a view to rectifying any mistake apparent from the record (a) the Income-tax Officer may amend any order of assessment or of refund or any other order passed by him ; (b) the Appellate Assistant Commissioner or the Commissioner (Appeals) may amend any order passed by him under se ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... for its discovery on elaborate arguments or questions of fact or law. Similar view was also expressed in Satyanarayan Laxminarayan Hegde v. Mallikarjun Bhavanappa Tirumale, AIR 1960 SC 137. It is to be noted that the language used in Order XLVII, rule 1, of the Code of Civil Procedure, 1908 (in short "the CPC"), is different from the language used in section 154 of the Act. Power is given to various authorities to rectify any mistake "apparent from record" under section 154 of the Act. In the Civil Procedure Code, the words are "an error apparent on the face of the record". The two provisions do not mean the same thing. The power of officers mentioned in section 154 to rectify "any mistake apparent from the record" is undoubtedly not more ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tion under section 154 to rectify mistakes is no doubt wider than that provided in Order XLVII, rule 1 of the Civil Procedure Code. None the less, there must be material to support the claim for a particular relief and unless such material can be referred to, no grievance can be made if the Assessing Officer refuses such relief. In view of the legal position as set out above, the authorities were justified in not accepting the claim of the assessee for rectification under section 154 of the Act. Question No. 2 referred to above is answered against the assessee and in favour of the Revenue. In view of said answer, the other question is really of academic nature and is not answered. Reference application is accordingly disposed of. - ..... X X X X Extracts X X X X X X X X Extracts X X X X
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