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TMI Blog2015 (9) TMI 332X X X X Extracts X X X X X X X X Extracts X X X X ..... x Act. For facility, the facts stated in Writ Petition No.197 of 2010, M/s Sheikh Abdullah & Sons vs. Union of India, through Secretary Ministry of Finance, New Delhi and others for the assessment year 1997-98 and Income Tax Appeal No.215 of 2015, Principal Commissioner of Income Tax, Varanasi vs. M/s Sheikh Abdullah and Sons for the assessment year 1997-98, is being taken into consideration. 2. The assessee is engaged in the business of manufacture and sale of carpet. In his return, the assesseee claimed that interest earned on Exchange Earned Foreign Currency Account Term Deposit Receipt (EEFCTDR) was exempted under Section 10(15)(iv)(e) of the Income Tax Act (hereinafter referred to as the "Act") and was not taxable. The assessing offic ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ssessing officer was not in conformity with the direction of the Tribunal and was also pre-judicial to the interest of revenue. 3. Based on the order dated 3.3.2008, passed by the Commissioner of Income Tax, under Section 363 of the Act, as affirmed by the order of the Tribunal, the assessing officer passed a fresh assessment order dated 29.12.2008 after making due inquiry and, after considering the directions of the Tribunal as contained in its order dated 3.4.2006. The assessing officer after considering the provision of Section 10(15)(iv)(e) of the Act held that the conditions prescribed in Section 10(15)(iv)(e) of the Act had been satisfied by the assessee, and therefore, the assessee was entitled for interest exemption under Section 1 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sed an order dated 30.3.2001 under Section 263 of the Act setting aside the assessment order and directing the assessing officer to pass a fresh assessment order in the light of the direction contained therein. The assessee, being aggrieved, filed an appeal before the Tribunal, which was allowed by an order dated 22.4.2015 and the order of the Commissioner passed under Section 263 of the Act set aside. The Department, being aggrieved, has filed the present appeal under Section 260A of the Act praying that a substantial question of law arises for consideration, namely, that the Tribunal was not justified in setting aside the order of the Commissioner under Section 263 of the Act, inasmuch as, the assessment order was inconsistent with the di ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the Supreme Court held that an erroneous view of law or a debatable point cannot be rectified as a mistake apparent on the face of the record and further held that incorrect application of law cannot be corrected. 10. Similar view was again reiterated by the Supreme Court in Mepco Industries Ltd. vs. Commissioner of Income-Tax and another, 2009 319 ITR 208, wherein the Supreme Court held that a rectifiable mistake is a mistake which is obvious and not something which has to be established by a long drawn process of reasoning or where two opinions are possible. Further, a decision on a debatable point of law cannot be treated as a mistake apparent from the record. 11. In the light of the aforesaid decisions, we find that the assessing offi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ss an order under Section 263 of the Act. The Commissioner of Income Tax assumes jurisdiction under Section 263 of the Act when it issues a notice to the assessee under Section 263 of the Act to show cause as to why the order of the assessing authority should not be set aside on the ground that the assessment order was pre-judicial to the interest of the revenue. On this aspect, the assumption of jurisdiction takes place when a notice is issued under Section 263 of the Act. This notice under Section 263 of the Act was issued by the Commissioner on 18.3.2011 much after the assessment order dated 29.12.2008 was modified by an order dated 9.2.2010 under Section 154 of the Act. 14. We are of the opinion that once the assessing officer modifies ..... X X X X Extracts X X X X X X X X Extracts X X X X
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