TMI Blog2000 (12) TMI 76X X X X Extracts X X X X X X X X Extracts X X X X ..... ce the assessment for increasing the liability. The nature of the mistake proposed to be rectified has been given that a sum of Rs. 12,69,760 being the amount paid to the Bata Workmen Sickness Benefit Society was wrongly allowed. Mr. Bajoria, learned senior counsel appearing for the writ petitioner, contends that the notice under the aforesaid section is bad in law as the assessment order in the name of rectification of the mistake cannot be reopened. The scope and purview of section 154/155 is very limited and this can only be exercised where the mistake is apparent on the face of the record upon a plain reading of the assessment order. If there is any scope for further enquiry and reconsideration of any materials then the aforesaid sect ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... position then the petitioner, as a matter of right, under section 40A, sub-section (9), is entitled to get such deduction and so the deduction has been allowed for the relevant assessment order. Therefore, there is no scope for any error being committed on the face of the records. It is not a patent error. As such there was no jurisdiction vested upon the authority concerned to issue any notice, unless there had been a patent error on the assessment order. Therefore, on the merits, he contends this notice is liable to be set aside since there is no foundation at all. Mr. Ram Chandra Prasad, learned counsel appearing for the respondents, in his usual eloquence contends otherwise and says citing a Full Bench decision of the Patna High Cour ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... (1A) Where any matter has been considered and decided in any proceeding by way of appeal or revision relating to an order referred to in sub-section (1), the authority passing such order may, notwithstanding anything contained in any law for the time being in force, amend the order under that sub-section in relation to any matter other than the matter which has been so considered and decided. (2) Subject to the other provisions of this section, the authority concerned--..." On a plain reading of the aforesaid section it will appear that the said section can be invoked only for the purpose of rectifying any mistake apparent from the record. In the notice itself nowhere has it been mentioned what is the apparent and patent mistake occurri ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... served that the alleged mistake given pertains to reopening and/or correctness and incorrectness of the assessment order. The learned single judge of this court has adopted the same view in the aforesaid case reported in Coates of India Ltd. v. Dy. CIT (No. 2) [1995] 214 ITR 504 wherein justice Ruma Pal held that when the issue was debatable notice could not be issued under section 154 and the Assessing Officer could not decide it under section 143. The Division Bench of this court in ITO v. India Foils Ltd. [1973], 91 ITR 72, has examined the scope of section 154. It is held amongst others that the mistake defined in the aforesaid section must be apparent on the face of the records. It must be an obvious, clear and patent mistake. One whic ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... writ petitioner has paid the aforesaid fund for the medical benefit of the employee to an another body. In the previous assessment years, deduction of the same head has been allowed. There was no question about it. There is neither an subsequent development nor any occasion to depart from the stand taken by the Department on earlier occasions. In such circumstances, the contention of Mr. Prasad is not acceptable to me either in law or on fact. I decide this question on the facts inasmuch as the documents produced before me are undisputed and unimpeachable in character. So, I hold that the notice is non est and this has been illegally issued and the same is liable to be and is hereby set aside. There shall, however, be no order as to cos ..... X X X X Extracts X X X X X X X X Extracts X X X X
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