TMI Blog1989 (9) TMI 156X X X X Extracts X X X X X X X X Extracts X X X X ..... then decided, understood and applied. Subsequently by Finance Act No. 2 of 1980, Section 80J was amended with retrospective effect, providing that in computing the capital employed for the purpose of Section 80J, the borrowed capital should be excluded. This amendment was made with retrospective effect which covered the years under appeal before the Tribunal. Since the Tribunal had not noticed the amendment and gave relief which was against the provisions of the Income-tax Act, as amended with retrospective effect. The Department had by a misc. application dated 28-1-1981 brought this mistake to the notice of the Tribunal and requested it to rectify its order. This Misc. application eventually came up for hearing before the Tribunal on different occasions and finally it was disposed of by its order dated 6-4-1985 whereby the Tribunal held that the mistake pointed out by the Department did exist in the order of the Tribunal and, therefore, it should be rectified. The operative portion of the order of the Tribunal was relevant and, we therefore, reproduce it below :-- "At the time of hearing of this application, the learned counsel for the assessee Sh. C.S. Agarwal did not oppose ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ucial date is not the date of passing the order by the authority empowered to rectify the mistake but the date of filing of the petition, as otherwise the delay taken by the authority to rectify the mistake either voluntarily or involuntarily, may frustrate the very right given to an assessee to get his orders rectified. Similarly the petition filed by the assessee now, though was within time i.e. on 14-10-1988 from the date of the order passed by the Tribunal on the misc. application namely 6-4-1985, as on today that was barred by limitation because by today the period of four years had already expired. What the learned counsel for the assessee contends is that if an application was filed within time, the date of disposal by the Tribunal would not matter in any way but he contends that this rule would apply only to the applications filed by him and not to the applications filed by the Department in any way to the application filed by the I.T.O. on 27-4-1981. He seeks to distinguish the application filed by the Department on 27-4-1981 from the application filed by the assessee on 14-10-1988 placing reliance upon a decision of the Allahabad High Court in Vithaldas v. ITO [1969] 71 I ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rit to enforce rectification could be issued. It was in that context that the High Court observed that it was the duty of the I.T.O. u/s 35 to make the rectification and as he had failed to do so, the High Court had power to issue a writ and directing the I.T.O. to make a rectification even though the period of four years fixed u/s 35 had expired. The High Court in this case, after reviewing the relevant Law on the subject, including the Halsbury's Laws of England came to the conclusion that the period prescribed u/s 35 could only be said to be the period within which proceedings and other section should be commenced and not that the power given on that section should be exercised within the period fixed in the section. In Halsbury's Law of England, to which reference was made, the law on the point was stated :-- "If public officials or a public body fail to perform any public duty with which they have been charged, an order of mandamus will he to compel them to carry it out, even though the time prescribed by statute for the performance of the duty may have passed." It is applying this principle that the Allahabad High Court had stated in that case that since the assessee had ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... no power to make such an order acting u/s 154 of the I.T. Act because Section 154 would apply only to the orders passed by the I.T.O. and the C.I.T. could have cancelled the order only if the earlier order had been passed by a Commissioner u/s 263 or sec. 264 and not otherwise. There were some other issues involved in this case which were decided by the High Court against the revenue but we are not concerned with any one of them in this matter. This decision, does not turn upon an issue even closer to the issue before us. 6. The learned counsel for the assessee also placed reliance upon a decision of the Supreme Court in the case of Kapurchand Shrimal v. CIT [1981] 131 ITR 451. The Supreme Court laid down in this case the ruling that it is well known that an appellate authority has the jurisdiction as well as the duty to correct all errors in the proceedings under appeal and to issue, if necessary, appropriate directions to the authority against whose decision the appeal is preferred to dispose of the whole or any part of the matter afresh, unless forbidden from doing so by the statute. We fail to see how the authority will help the assessee's cause. The statute clearly forbids a ..... X X X X Extracts X X X X X X X X Extracts X X X X
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