TMI Blog2011 (10) TMI 701X X X X Extracts X X X X X X X X Extracts X X X X ..... on the basis of recommendation of 5th Pay Commission and notification of Govt. of India dated 4.3.1998. 2. That claim being a genuine liability and permissible deduction under the law and as such the claim is required to be allowed under the provisions of Act. 3. That claim is also in conformity with observation of Assessing Officer and CIT(A) for assessment year 1997-98 and as such admissibility of the claim is not in dispute. 4. That there is no evidence or finding that claim is of debatable nature or in respect of which two opinions are possible and as such claim is permissible deduction under the provisions of Sec. 154 of the Income Tax Act, 1961. 5. That claim is supported on the basis of evidence on record and mercantile ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sion has to be made on the basis of Department of Public Enterprises OM dated 24.10.97, vide which Govt. s decision of pay revision of public sector employees was communicated. Accordingly, the claim of the appellant is in the nature of a continent liability. The liability had not crystallized in the period relevant to the instant assessment year 1997-98, since the appellant had been maintaining the books of accounts on mercantile basis. Accordingly, the Assessing Officer s action of adding back the afore cited sum of ₹ 2.50 crores is hereby confirmed. As regards the appellant s contention that the claim may be allowed in respect of assessment year 1998-99, it is to be stated that instant appeal relates to the assessment year 1997-98. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ws referred by the Assessing Officer in fact supported the case of the appellant. Even otherwise, the Assessing Officer was under legal obligation to apply relevant provisions of law and determine the correct assessable income. Reliance was placed on the Apex Court s decision in the case of CIT v. Mahalaxmi Sugar Mills Co. Ltd. 160 ITR 920. 7. It was further contended that the claim was permissible deduction under the law and the same was in the nature of wage arrears as per notification of Govt. of India and factual and legal position to the above effect was not disputed even by the Assessing Officer. In the above facts, it was contended that the assessee was entitled to the relief in view of the following case laws:- 1. Kedarnath Ju ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... cation. The assessee could have made the said claim by filing a revised return. However, this was not done. In any case, there was no mistake apparent from record as pointed out by the assessee. It was opined by the ld CIT(A) that the observation of the Assessing Officer that allowability of the provision would require examination of fact and therefore the same cannot be rectified u/s 154 of the Act was correct. Reliance was placed by him on the decision of the ITAT Chennai Bench in the case of ACIT V. Super Spg. Mills Ltd. in I.T.A. No. 768/MDS/2008. Further reliance as placed by him on the Hon'ble Punjab Haryana High Court s decision in the case of CIT v. RBL Banarsi Dass Co. Ltd. in I.T.A. No. 603/2006. 10. It was further opined ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 98-99. It did not do so. After more than 8 years, the assessee moved a rectification petition on 26.8.2009. This factual aspect of the case has not been dealt with by the authorities below. The rectification petition moved by the appellant is hopelessly time barred and the same could not have been adjudicated upon by the Assessing Officer. Even otherwise it is quite obvious that a claim which has not been made before the Assessing Officer during the assessment proceedings cannot give rise to a mistake apparent from the record. In the above view of the matter, we find no merit in the appeal filed by the assessee. We reject all the grounds raised by the assessee. 15. In the result, the appeal filed by the assessee is dismissed. 16. Or ..... X X X X Extracts X X X X X X X X Extracts X X X X
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