9911796707
TMI Blog2000 (8) TMI 63X X X X Extracts X X X X X X X X Extracts X X X X ..... "CIT(A)"). An order under section 154 of the Act was passed by the Assessing Officer holding that interest allowed to the assessee under section 244A(1) was not allowable and had been allowed by mistake. The stand of the assessee that the action was not permissible under section 154 was not accepted. The assessee filed an appeal before the Commissioner of Income-tax (Appeals) which yielded no relief to it. On further appeal, the Tribunal held that section 154 did not apply to a case of this nature. The factual position which is undisputed is as follows: For the assessment year in question, the return was processed under section 143(1)(a) on March 19, 1993, on a total returned income of Rs. 1,69,71,48,952 and total tax and interest payable ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ----- Adjustment of total taxes and interest payable with total pre-paid taxes resulted in refund of Rs. 40,24,85,394. The assessee was allowed interest under section 244A(1) on the above refund. Later on, the Assessing Officer was of the view that such allowance of interest was impermissible as this case was not covered under the Explanation to clause (b) of section 244A(1). Notice under section 154 was served on the assessee, which raised an objection stating that clause (b) of sub-section (1) of section 244A clearly comes into operation and withdrawal of interest is not permissible under section 154 of the Act. Reliance was also placed on Circular No. 549, dated October 31, 1989, to claim interest. The Deputy Commissioner of Incometax ( ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... true, conspicuous, manifest, obvious, seeming." A mistake which can be rectified under section 154 is one which is patent, which is obvious and whose discovery is not dependent on argument or elaboration. In our view the amendment of an order does not mean obliteration of the order originally passed and its substitution by a new order. What the Revenue intends to do in the present case is precisely the substitution of the order which according to us is not permissible under the provisions of section 154 and, therefore, the Tribunal was justified in holding that there was no mistake apparent on the face of the record. In order to bring an application under section 154, the mistake must be "apparent" from the record. Section 154 does not enab ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e basis of "an error apparent on the face of the record" (see T. S. Balaram, ITO v. Volkart Brothers [1971] 82 ITR 50 (SC)). "Mistake" is an ordinary word but in taxation laws, it has a special significance. It is not an arithmetical error which, after a judicious probe into the record from which it is supposed to emanate or discerned. The word "mistake" is inherently indefinite in scope, as what may be a mistake for one may not be one for another. It is mostly subjective and the dividing line in border areas is thin and indiscernible. It is something which a duly and judiciously instructed mind can find out from the record. In order to attract the power to rectify under section 154, it is not sufficient if there is merely a mistake in the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... penalty specified in the notice of demand is paid in excess of such demand. 11. It was stated that there is absolutely nothing in the section by which interest is denied on the payments made under section 140A. Besides, it cannot be said that section 244 interest is allowable only on those excess payments of tax which are made on consequence of the service of notice of demand/intimation. The language of the Act is clear. There is no ambiguity in it. As per the interpretation of the section the assessee is clearly entitled to get the interest on the excess amount paid. 12. Further alternatively, it was argued that the interest allowed cannot be withdrawn by resorting to the provisions of section 154 of the Act. Reference was made to the de ..... X X X X Extracts X X X X X X X X Extracts X X X X
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