TMI Blog2001 (2) TMI 289X X X X Extracts X X X X X X X X Extracts X X X X ..... ontended that a prima facie adjustment in respect of such a debatable issue is invalid and not justified. He has referred to para 3 on p. 3 of the W/S and contended that the assessee's return was filed on 28th Feb., 1995, and the intimation under s. 143(1)(a) was passed on 20th Oct., 1995. He has contended that as on that date there was no judgment of the Hon'ble jurisdictional High Court and there were several decisions of the Tribunal as also of Hon'ble High Courts in favour of the assessee including Aziz Ali Zaidi vs. ITO 17 Taxman 57 (Jp) rendered prior to contrary decision of Hon'ble Rajasthan High Court in the case of CIT vs. Shiv Raj Bhatia (1996) 133 CTR (Raj) 379 : (1997) 227 ITR 7 (Raj) and N.C. Patodia vs. ITO (1997) 59 TTJ (Jp) 179 decision rendered after the judgment of Hon'ble Rajasthan High Court in the case of Shiv Raj Bhatia. He has contended that the contrary judgment of Hon'ble Rajasthan High Court in the case of Shiv Raj Bhatia was made on 1st May, 1996. He has contended that making of prima facie adjustment of such debatable issues at the time when return was filed is not justified and is beyond the scope of s. 143(1)(a). He has cited Asstt. CIT vs. M. Srinivas ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... deduction permissible under s. 16 of IT Act, 1961, and the same is binding on this Bench. He has contended that in view of the said decision of the Hon'ble Rajasthan High Court no deduction out of incentive bonus is allowable to the assessee. He has also contended that even a subsequent decision of High Court takes effect from inception and has retrospective effect. He has cited Walchand Nagar Industries vs. V.S. Gaitonde, ITO (1962) 44 ITR 260 (Bom) and Kil Kotagiri Tea Coffee Estate Co. vs. ITAT (1989) 75 CTR (Ker) 115 : (1988) 174 ITR 579 (Ker) in his support. He has also contended that the decisions cited by learned authorised representative of assessee are subsequent to assessment. He has contended that the Supreme Court case is not applicable because it was not a case of retrospective amendment. He has contended that the AO disallowed the assessee's claim of 40 per cent deduction which was not allowable under law at that time. 5. As regards the conveyance allowance and additional conveyance allowance he has contended that they have been allowing as per Board's direction. He has contended that the CIT(A) has power under s. 251(1)(a) to enhance the income and since from the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ame was held to be highly debatable issue. 7.1. As regards additional conveyance allowance, the decision in the case of Aziz Ali Zaidi was rendered by the Jaipur Bench of Tribunal in favour of the assessee on 14th Jan., 1993, that is, prior to the date of issue of intimation under s. 143(1)(a) in the instant case whereas the contrary judgment of Hon'ble Madras. High Court in the case of CIT vs. E.A. Rajendran (1997) 142 CTR (Mad) 244 : (1999) 235 ITR 514 (Mad) and that of Hon'ble Bombay High Court in the case of LIC Class I Officers (Bombay) Association vs. Union of India Ors. (1998) 229 ITR 510 (Bom) were delivered on 22nd July, 1997 and 9th June, 1997, respectively that is, after the date of issue of intimation under s. 143(1)(a) in the present case. Subsequently, the Hon'ble Punjab Haryana High Court, in the case of CIT vs. Chaman Lal Chandok (2000) 241 ITR 442 (P H) delivered its judgment in favour of the assessee on 22nd Dec, 1998. It is thus clear that on the date of issue of intimation under s. 143(1)(a) in the instant case, the decision of Jaipur Bench of Tribunal was available to the AO and there being no contrary decision of any High Court, the AO was under obligati ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... eld as disclosing a mistake apparent from record in view of Division Bench's judgment. 9. In (1962) 44 ITR 260 the AO had levied additional tax on excess dividends which was ultimately confirmed by Tribunal. In the meanwhile in some other cases the Hon'ble High Court declared the levy of additional tax on excess dividends to be invalid. The assessee thereupon filed rectification application for deletion of additional tax levied by the ITO rejected the same. The assessee then filed revision against the same to CIT. In the meantime the judgment of High Court was affirmed by Hon'ble Supreme Court that the levy of excess dividend tax was bad in law. In this factual background the Hon'ble Supreme Court held as under: "that the effect of the decision of the Supreme Court was that the levy of excess dividend tax was at no time good, and therefore, the assessment order made by the ITO levying excess dividend tax was bad at its inception on the date it was made, not withstanding that the decision of the Supreme Court was given subsequent to that date, and that was a mistake apparent from the record......." However in CIT vs. Hindustan Electro Graphites Ltd. (2000) 160 CTR (SC) 8 : (20 ..... X X X X Extracts X X X X X X X X Extracts X X X X
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