TMI Blog2003 (5) TMI 41X X X X Extracts X X X X X X X X Extracts X X X X ..... appeal has since been filed against the said decision. The letter accompanying the said notice discloses that the Assessing Officer in the relevant assessment year 1991-92 had held the appellant as "non-resident", which is a mistake of fact apparent from the records, requiring rectification. From the assessment proceedings for the assessment years 1992-93 and 1993-94 and the facts furnished by the assessee, it was found that the assessee was a resident for the year 1989-90. Though he could be a "non-resident" for the year 1990-91, but in the assessment year 1991-92, the status of the assessee should have been "ordinarily resident". Mr. Pranab Pal, learned senior counsel for the appellant, pointed out from the order appealed against that the learned single judge had held that the absence of reason in the assessment order is a mistake apparent from the record rectifiable under section 154. He also pointed out that the learned judge had held that the Assessing Officer has not disclosed the reason for his holding the assessee "non-resident" either under section 6(1)(a) or 6(1)(c) despite the assessee's claim that his status was "resident but not ordinarily resident. Mr. Pal contended ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... clusively establish that a person comes under clause (b) except after long drawn argument, section 154 cannot be attracted. Such a situation cannot be brought within the scope and ambit of mistake apparent from the records. According to him, in this case, if the assessee is required to be brought within clause (b) of the Explanation, in that event, the Revenue requires to put forth a long drawn argument to establish the said fact and that too without any conclusiveness. In support of his contention that it is not an adversary proceeding and, therefore, no reason is to be given in the assessment order, Mr. Pal relied on S.S. Gadgil v. Lal and Co. [1964] 53 ITR 231 (SC). In support of his contention that section 154 cannot be attracted where there is a debatable question on the merits, he relied on CIT v. South India Bank Ltd. [2001] 249 ITR 304 (SC); Bata India Ltd. v. IAC of IT [2001] 249 ITR 491 (Cal); Coates of India Ltd. v. Deputy CIT (No. 1) [1995] 214 ITR 498 (Cal) and ITO v. India Foils Ltd. [1973] 91 ITR 72 (Cal). He had relied on the last cited decision for another purpose, namely, that if the notice appears to be illegal, then the assessee cannot be made to wait till the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 91-92, the assessee arrived at Bombay from abroad on April 1, 1990, and left Bombay for abroad on April 3, 1990, and thus he had been visiting India occasionally on diverse dates totalling to 180 days. These facts are apparent from the records to attract the application of Explanation (b) to section 6(1)(c) under which "non-resident" status cannot be conferred if the assessee remains in India for 150 days or more. According to him, the facts clearly disclose that the assessee would be governed by clause (b) of the Explanation to section 6(1)(c) and not by clause (a) thereof as was held by the Assessing Officer. According to him, it is not a case of leaving India in connection with employment outside India within the meaning of clause (a) of Explanation to section 6(1)(c), but a case of visiting India within the meaning of clause (b) of the Explanation thereto. He contended further that a little amount of argument would not take away the application of section 154. According to him, in order to establish all facts, some amount of argument is necessary. In this case, the second opinion can be arrived at only by straining the meaning and stretching the facts and interpreting the same ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 10 ELT 129 (Cal) and Superintendent of Central Excise v. R.K. Chemical Industries Pvt. Ltd. [1987] 30 ELT 641. Such a view was taken by this court in Singh Alloys and Steel Ltd. v. Asst. Collector of Central Excise [1993] 66 ELT 594 (Cal). In Madura Coats Ltd. v. Asst. Collector of Central Excise [2002] 139 ELT 17 (Cal); Babu Ram Jayant v. Regional Manager, U.P. State Road Transport Corporation [1997] Lab IC 2604 (All); Ex. No. 1535646-F Recruit Trainee Ram Niwas v. Union of India [1997] Lab IC 3409 (All) sitting singly, I had occasion to hold that existence of alternative remedy will not be a bar in entertaining a writ petition having been entertained by court and kept pending till a late stage. In Dhampur Sugar Mills Ltd. v. Union of India [2000] 122 ELT 333 (SC), it was held that in a case of pendency of the writ petition for years, relegation to alternative remedy would be a little harsh. That apart, if in this case on the face of the notice it appears to be without jurisdiction or illegal, then the assessee cannot be made to wait till a decision in the proceeding itself debarring him from challenging the notice, excluding the jurisdiction of the writ court. Therefore, it wo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... o exercise the discretion. The decision in V.K. Construction Works Ltd. v. CIT [1995] 215 ITR 26 (P H) lays down the same principle, which is distinguishable in the present context. The decision in Radharani Tea and Estate (P.) Ltd. v. ITO [1990] 184 ITR 581 (Cal) was dealing with a case where there was no lack of jurisdiction to issue the notice. The decision in Rai Bahadur Seth Teomal v. CIT [1963] 48 ITR 170 (Cal), laid down that whether the assessee is a resident or non-resident is a question of fact, Relying on this decision Mr. Deb contended that such a question could be decided by the authorities under the Act. But this principle has no manner of application in the present case. In as much as here we are concerned with the question of jurisdiction to issue the notice under section 154 on the ground of an error apparent from the record. On the facts now we are to examine whether the authority could assume the jurisdiction to issue the notice in the absence of the ingredients satisfying the test of error apparent from the record. Now let us address ourselves to the question of estoppel operating against the assessee. The assessee, had submitted his reply and without waiting ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of law, in respect of which there cannot be any two opinions and it should not be one in order to establish which a long drawn process of argument or reasoning is to be advanced. We may now deal with the proposition whether absence of reasoning would be a mistake apparent from the records. We do not think that such a proposition would be a sound proposition. In as much as the proceeding undertaken by the Assessing Officer is not an adversary proceeding. It is not an adjudication of a civil dispute. It is not in the nature of a judicial proceeding between the contesting parties. It is not a matter capable of a plausible argument. The Assessing Officer is empowered to assess the tax. But he does not act as a judge deciding a litigation between the citizen and the State. He is an administrative authority. The proceeding is regulated by the statute. His function is to estimate the income of the taxpayer and to assess him to tax on the basis of such estimate. Tax legislation necessitates the setting up of machinery to ascertain taxable income and to assess tax on the income. But that does not impress the proceeding with the character of an action between the citizen and the State. It ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... but still then a second view is possible for governing the case under clause (b) of the Explanation. Thus, it seems from these facts that two views are possible. Clause (a) of the Explanation covers cases where a citizen of India leaves India for the purpose of employment outside India, then he would be a "non-resident" if he is in India for a period less than 182 days. Admittedly, in this case, the assessee was employed outside India. This is not in dispute. This has since been affirmed in the affidavit-in-opposition on behalf of the Revenue. Mr. Deb in his usual fairness did not dispute the same. Now having been employed outside India whether the assessee comes to visit India within the meaning of clause (b) of the Explanation is a question, which cannot be conclusively decided on the basis of the facts available. Thus, having regard to the facts and circumstances of the case, the question can be decided either way, the question seems to be debatable. It is a question of drawing inference from the facts and as such is a question of law. A mistake of law can also be a ground for rectification under section 154 provided such mistake is glaring and apparent. In this case, we are ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ions of the said proviso, therefore, it was held to be a mistake apparent from the record. After having so held in the said decision, it was reiterated by the apex court that a mistake of law, which is glaring and obvious can be rectified under section 35 of the 1922 Act, a provision similar to section 154 of the 1961 Act. The reference to M.K. Venkatachalam, ITO v. Bombay Dyeing and Manufacturing Co. Ltd. [1958] 34 ITR 143 (SC), by Mr. Deb does not help us in the present facts. In as much as there it was held that a glaring mistake in law can be rectified under section 154. In the present case the mistake alleged, as observed earlier, does not seem to be free from doubt for being held glaring. Similarly CIT v. Malayala Manorama Co. Ltd. [2002] 253 ITR 378 (Ker), also deals with mistake apparent from the record. On the same ground as mentioned above this decision does not help Mr. Deb in this case. Applying the above test on the basis of the facts as we have found, it appears that the mistake sought to be rectified is not a mistake apparent from the records within the meaning of section 154 as is the consistent view of different courts including the apex court as discussed above ..... X X X X Extracts X X X X X X X X Extracts X X X X
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