TMI Blog2016 (8) TMI 649X X X X Extracts X X X X X X X X Extracts X X X X ..... issue of Section 80HHC of the Act which has undisputedly merged with the order of the Appellate Authority. Thus, on the aforesaid ground itself, the impugned notice is without jurisdiction. Issue of benefit of Section 80HHC of the Act was debatable one and, therefore, could not be a subject matter of rectification proceedings. Any issue that requires debate and is not self evident as it requires examination and consideration, would be beyond the scope of rectification. Thus, on the above ground also the impugned notice is without jurisdiction. - Writ Petition No. 2673 of 2001 - - - Dated:- 28-7-2016 - M. S. Sanklecha And A. K. Menon, JJ. For the Petitioner : Mr. F.V. Irani a/w Atul Jasani For the Respondent : Mr. Ashok Kotangle i/b Ms. Padma Divakar ORDER P. C. 1. This petition under Article 226 of the Constitution of India assails the Notice dated 26th September, 2001 issued by the Assessing Officer under Section 154 of the Income Tax Act, 1961 (the Act). The impugned notice dated 26th September, 2001 seeks to rectify an order dated 5th October, 1998 passed under Section 154 of the Act relating to A.Y. 1992-93. The basis of the impugned notice is the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ized for annexing the incorrect document. The copy of order dated 23rd August, 1996 is taken on record and marked X . (d) On 5th October, 1998, the Assessing Officer consequent to the petitioner pointing out non-granting of interest under Section 244A of the Act, rectified its order dated 23rd August, 1996 under Section 154 of the Act. Thus determining the interest payable under Section 244A of the Act. The order dated 5th October, 1998 reads as under : In this case order u/s 154 was passed on 06.03.1996 determining Taxable Income at ₹ 2,16,62,966/resulting in refund of ₹ 33,33,237/after giving credit for ₹ 46,45,943/being the total refundable amount adjusted against the demand of the said assessment year. The assessment was further rectified u/s 154 on 23.08.96 to give credit for on amount of ₹ 14,72,940/which was adjusted against the said assessment year. The assessee's representative has pointed out that interest u/s 244A was not granted while determining the amount refundable to the assessee. After verification the assessees contention was found to be correct. Hence the mistake being apparent from record is duly rectified u/s 15 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... in your own case for A.Y. 1996-97. In this regard the last order passed for this assessment year is order u/s 154 dated 5.10.1998 in your case (IT/WT/GT) requires to be amended as there is a mistake apparent from the record within the meaning of Section 154/155 of the Income Tax Act, 1961/35 of WealthTax Act, 1957/34 of Gift Tax Act, 1958. The rectification of the mistake as per details given below will have the effect of enhancing the assessment / reducing the refund / increasing your liability and, therefore, if you wish to be heard in this connection you are requested to appear in person or by an authorised representative in my office at Mumbai on 8.10.2001 at 11.00 a.m. if, however, you intend sending a written reply to this notice and do not wish to be heard in person, you are requested to ensure that your reply reaches me on or before the date mentioned above. (g) The impugned notice was challenged in this Court as being without jurisdiction and as pointed out above, admitted on 27th November, 2001. 4. Mr. Irani, learned Counsel appearing in support of the petition submits that the impugned Notice dated 26th September, 2001 is without jurisdiction submits as under : ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... support, reliance is placed upon the decision of the Apex Court in Hind Wires Ltd. Vs. Commissioner of Income Tax, 212 ITR 639. 6. It is a settled position in law that the power under Section 154 of the Act can be exercised to amend any order passed by an Authority under the Act, upon satisfaction of the following conditions : (a) Mistake must be in the order; (b) Mistake must be apparent from the record i.e. it must not be an issue on which two views are possible and the mistake need not be apparent from the order itself but could also be evident from the materials i.e. the record upon which the order sought to be rectified is based; (c) Only that portion of the order can be rectified, which has not merged into an order of the Appellate authority; (d) The order on rectification should be made within 4 years from the end of the financial year in which the order sought to be rectified is passed; and (e) An amendment under Section 154 of the Act could be made not only at the instance of the Authority itself but also at the instance of the Assessee. 7. The Revenue's contention that the entire exercise of issuing the impugned notice is to set right a mistake in ..... X X X X Extracts X X X X X X X X Extracts X X X X
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