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TMI Blog2008 (2) TMI 567X X X X Extracts X X X X X X X X Extracts X X X X ..... -tax Act, 1961 for rectification of the mistake. The appeal was admitted by framing the following substantial question of law: "Whether on the facts and in the circumstances of the case, the learned Tribunal is justified in upholding the order passed by the learned Commissioner of Income-tax (Appeals) by holding that the impugned adjustment made by the Assessing Officer was outside the purview of section 143(1)(a) of the Income-tax Act? 2. Bereft of unnecessary details the facts are that the assessee had filed the return, and thereupon after taking recourse to the procedure provided under section 131, etc., and giving necessary opportunity of hearing to the assessee, the assessment order was made on August 26, 1996. In the return, the ass ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... either of fact or law, apparent on the record, because no report as is required for relevant deduction under section 80HHC, was enclosed with the return of the income, and therefore, the me was not allowed, and the amount was added to the total income of the assessee, by making adjustment of the income, under section 143(1) (a). Certain circulars of the Board were also pressed into service, but then they were found to be not applicable, as in the case in hand, from the enquiries made it transpires that there was no report even available with the assessee at the time of fifing the return, and the report was filed only along with the application under section 154. The report is dated September 16, 1996, while the return was filed on October 3 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ional tax. Thus, the appeal was allowed and additional tax, as levied, was ordered to be deleted. This order has been upheld by the learned Tribunal by holding that the impugned adjustment made by the Assessing Officer was outside the purview of section 143(1)(a); this being a mistake of law apparent on record, the Assessing Officer ought to have accepted the application under section 154. 3. We have heard learned counsel for either side and have gone through the impugned orders, so also various judgments considered by the learned authorities below. 4. First of all we take up the cases considered by the learned Commissioner. So far as the first judgment relied upon, said to be in CIT v. Shivanand Electronics said to be reported in [1994] ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tements of the assessee were recorded on August 23, 1996, and then assessment was made on August 26, 1996, disallowing the deduction and admittedly the auditor's report is dated September 16,1996. Therefore, this judgment does not help the cause of the assessee at all. 6. Then, the next judgment relied upon by the learned Commissioner, being in Addl. CIT v. Murlidhar Mathura Prasad reported in [1979] 118 ITR 392, is a judgment of the Allahabad High Court wherein the Allahabad High Court was considering the requirement of section 184(7), which requires certain declaration to be furnished along with the return, and it was considered to be a procedural requirement. The declaration required by section 184(7) was about an essential fact, that t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tion 143(1)(a), vide order dated August 26,1996, which is the deduction claimed by the assessee wider section 80HHC, which provides for deduction in respect of profits retained for export business and, according to sub-section (4A) thereof, the deduction under sub-section (1A) is not admissible unless the supporting manufacturer furnishes in the prescribed form along with his return of income the report of the accountant as prescribed therein and the certificate also from the export house and the documents are required to be further certified by the persons mentioned therein. Likewise, even under sub section (4) deductions under sub-section (1) are not admissible unless certain documents in the prescribed form are filed with the return. Lik ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... assessment was made under section 143(1)(a) on August 26,1996. It is much there after, that the assessee filed the revised return under section 139(5), along with the audit report, and in Form 10CCAC and that return was processed under section 143(1B) and in that assessment the deduction was allowed. It may be observed here, that a bare look at the language of section 143(1B) as it stood at that time would show that according to the proviso thereto, an assessee, who has furnished a revised return under sub-section (5) of section 139, after the service upon him of the intimation under sub-section (1) of section 143, does continue to remain liable to pay additional income- tax, in relation to the adjustments made under the first proviso to c ..... X X X X Extracts X X X X X X X X Extracts X X X X
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