TMI Blog1980 (10) TMI 40X X X X Extracts X X X X X X X X Extracts X X X X ..... inesh died on August 15, 1958, and under s. 6 of the Hindu Succession Act, his widow and his mother, Smt. Pushpavati, the assessee in the present case, became entitled to his 1/3rd share in the coparcenary property. In the assessment for the assessment years 1962-63 and 1963-64, the ITO added as her share (being 1/2 of 1/3rd share) 1/6th of income from the property which belonged to the HUF, as a protective measure. In the case of the HUF of Kantilal, for the assessment years 1960-61 and 1961-62, the question arose in appeal before the Tribunal as to whether the HUF continued after the death of Dinesh and the status was correctly taken as an HUF. On this question, the Tribunal took the view that even on the death of Dinesh as a member of the HUF, no division of the HUF was brought about and that even before the passing of the Hindu Succession Act, enlarging rights female heir, it has been held that with such female heirs there would be an HUF, and the legal position after the Hindu Succession Act came into force was not different. Thus, according to the Tribunal, 1/3rd share from the HUF due to Dinesh Kantilal cannot be excluded from the computation of total income of Kantilal Mani ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of the record so far as earlier orders were concerned. The Tribunal, following the decision of the Supreme Court in T. S. Balaram v. Volkart Brothers [1971] 82 ITR 50, held that rectification proceedings were without jurisdiction. The revenue thereafter requested the Tribunal to refer a question of law under s. 256(1) of the Act, and that is how a common question of law pertaining to both the appeals before the Tribunal has been referred to us for our opinion. We have already extracted in the earlier part of this judgment the question of law referred to us for our opinion. It is obvious that the AAC sought to rely on s. 154 of the Act for rectifying the earlier orders passed by his predecessor-in-office on the ground that the said orders required rectification on account of an apparent error from the record. Section 154(1)(b) of the Act provides: (1) With a view to rectifying any mistake apparent from the record- (b) the Appellate Assistant Commissioner or the Commissioner (Appeals) may amend any order passed by him under section 250 or section 271. " Hence, it must be established by the revenue that the earlier orders passed by the predecessor-in-office of the AAC suffered ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Act for rectifying the error which had crept in in the earlier Orders of the AAC so far as the assessee is concerned. The aforesaid facts clearly show that so far as the decision of the Tribunal in the case of Kantilal Manilal (HUF) for the assessment year 1962-63 is concerned, it had never formed the basis of the decision of the AAC in the case of the present assessee on the prior occasion Thus, the later decision of the Tribunal concerning assessment year 1962-63, so far as Kantilal Manilal (HUF) is concerned, was never part of the record of the appeals concerning the present assessee for the relevant assessment years. Hence, the later decision of the Tribunal rendered in the concept of an entirely different assessment year for a different assessee, viz., Kantilal Manilal (HUF) and which was never relied upon by the AAC for deciding appeals of the assessee on the prior occasion can never be pressed into service by the revenue for invoking provisions of s. 154 of the Act. It is obvious that the later decision of the Tribunal for a different year and for a different assessee and which was not before the mind's eye of the AAC while he decided at an earlier occasion the appeals of th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... look into it for the purpose of correcting the mistake in regard to the opening stock for 1960-61 and, to that extent, the two assessment telescoped into each other. It was further observed : " The Tribunal's finding that the value of the closing stock for 1959-60, should be Rs. 5,89,439 had completely replaced the Income-tax Officer's finding in regard to this fact with effect from the date of the latter's order or 1959-60. The Tribunal's decision was, equally with the Officer's finding, with regard to the closing stock for 1959-60, relevant to and part of the 'record of appeal' within the contemplation of section 35 and not extraneous to it. " It was, therefore, held that the AAC could legitimately look into the figure of closing stock for the year 1959-60, for the purpose of correcting the mistake in regard to the opening stock for 1960-61. It is difficult to appreciate how the aforesaid decision of the Supreme Court can be pressed into service by the revenue in the present case. As we have already stated above, the earlier order of the AAC in the appeal so far as the present assessee is concerned, rested on the prior order of the Tribunal for the assessment years 1960-61 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... shares were included and tax was assessed at the maximum rate since the partners were assessed as non-residents. Thereafter, initiating rectification proceedings under s. 154 of the I.T. Act, 1961, on the ground that there was a mistake apparent from the record inasmuch as the firm had not when charge I at the maximum rate of tax under s. 17(1) of the Indian I.T. Act, 1922, the ITO purported to rectify the assessments by applying the provisions of that section. The assessee approached the High Court under article 226 of the Constitution of India for quashing the rectification proceedings. The High Court held that the original assessments were prima facie in accordance with law and at any rate there was no obvious or patent mistake in those orders of assessment and, therefore, the officer was incompetent to pass the orders of rectification. On further appeal by the revenue to the Supreme Court, the decision of the High Court was confirmed. It was held by the Supreme Court that the officer was wrong in holding that there was a mistake apparent from the record of assessments of the firm. Hedge J., speaking for the Supreme Court in this connection, placed reliance on an earlier decisi ..... X X X X Extracts X X X X X X X X Extracts X X X X
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