TMI Blog2020 (3) TMI 556X X X X Extracts X X X X X X X X Extracts X X X X ..... the record . The judgment relied upon by the learned counsel for the Appellant/Assessee in the case of Commissioner of Income Tax vs. Pruthvi Brokers and Shareholders Pvt. Ltd. [ 2012 (7) TMI 158 - BOMBAY HIGH COURT] will not apply to the case on hand as it was not a decision rendered under Section 154 as its scope falls on a narrow compass involving mistakes apparent from the record . Circular No.14 (XL-35 1955 dated 11.04.1955) has no bearing to the facts of the present case as the payment of interest to IDBI was never disclosed by the Appellant/Assessee in the income tax returns. Unless and until, the tax returns disclosed interest payments, it is impossible for the assessing officer to assist the Appellant/Assessee to rectify the alleged mistake of omission to claim deduction for interest payments under section 43B of the Income Tax Act. - Decided against the Appellant/Assessee - T.C.A.Nos. 370 And 371 of 2019 - - - Dated:- 10-3-2020 - Mr. Justice M. Sathyanarayanan And Mr. Justice Abdul Quddhose For the Appellant in both TCAs : Mr.R.Venkatnarayanan For the Respondent in both TCAs : Mr.Karthik Ranganathan COMMON JUDGEMENT ABDUL QUDDHOSE, J. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... item of expenditure never claimed by the Assessee for allowance. Aggrieved by the common order dated 11.10.2012 passed by the Income Tax Appellate Tribunal, these Tax Case Appeals have been filed under Section 260-A of the Income Tax Act, 1961. 3. The following substantial questions of law have been raised by the Appellant/Assessee in the grounds of both the tax case appeals: 1.Whether on the facts and circumstances of the case, the Tribunal was right in holding that the Appellant's claim for allowing outstanding interest on loans paid to IDBI under section 43B was not a rectifiable issue coming within the purview of Sec 154 of the Act? 2.Whether on the facts and circumstances of the case, the Tribunal was right in holding that the CBDT Circular No.669 dt 25.10.1993 is not applicable to the facts of the case? 4. Heard Mr.R.Venkatnarayanan, learned counsel for the Appellant and Mr.Karthick Ranganathan, learned counsel for the respondent. Submissions of the learned Counsels: 5. According to the learned counsel for the Appellant/Assessee , the Appellant/Assessee while filing their returns for the Assessment years 2003-04 2004-05 omitted to claim deduct ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... eted, the only remedy that was available to the assessee is to file revision of assessment under Section 139(5) of the Income Tax Act, 1961 before completion of Assessment or within one year from the end of the assessment year whichever is earlier. According to him, the Appellant/Assessee having failed to file revision of Assessment to rectify the mistake within the prescribed period, the Appellant/Assessee cannot resort to section 154 of the Income Tax Act, which is meant to rectify mistakes apparent from the record and not meant to rectify omissions committed in the original returns. Discussion: 9. Any rectification of mistake under Section 154 of the Income Tax Act, 1961 can be sought for only when it is apparent from the record. As evident from the section, the mistake must be one which is patent, which is obvious and whose discovery is not dependent on further investigation. 10. We shall now examine as to whether the omission to claim deduction for interest payments in the original returns for the Assessment Years 2003-04 2004-05 will enable the Appellant/Assessee to file applications under Section 154 of the Income Tax Act to rectify the said omission. It is a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rther investigation. Therefore, the omission to claim deduction under Section 43B of the Income Tax Act for interest payments in the original returns is not a mistake coming within the purview of section 154 of the Income Tax Act. 13. The Hon'ble Supreme Court had an occasion to consider a similar provision under another taxing statute namely Orissa Sales Tax Act in the case of Master Construction Private Limited vs. State of Orissa reported in AIR 1966 SC 1047. Rule 83 of the Orissa Sales Tax Rules (1947) is akin to section 154 of the Income Tax Act. The material part of Rule 83 of Orissa Sales Tax Rules reads as follows: The Commissioner of Sales Tax....... may at any time correct any arithmetical or clerical mistakes or any error apparent on the face of the record arising or occurring from accidental slip or omission in an order passed by him, or it. Interpreting the above provision, the Hon'ble Supreme Court held as follows: Rule 83 provides a summary remedy within a narrow compass. The jurisdiction of the Commissioner under this rule is limited and is confined only to the correction of mistakes or omissions mentioned therein. An arit ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n, the only remedy available is under section 139(5) by filing revised returns. Instead in the case on hand, the Appellant/Assessee having failed to file revised returns to rectify the alleged omission has filed applications under section 154 of the Income Tax Act which is meant only to correct mistakes which are apparent from the records and not to cases involving omissions which are debatable and requires further investigation. The ratio decidendi in Master Construction Private Limited vs. State of Orissa reported in AIR 1966 SC 1047 r eferred to supra is also applicable to the case on hand as section 154 of the Income Tax Act is pari materia to Rule 83 of the Orissa Sales Tax Rules. Therefore, only mistakes which are patent, obvious and whose discovery is not dependent on any further investigation can be rectified under section 154 of the Income Tax Act. The case on hand does not fall in the said category for the above mentioned reasons. A Division Bench of this Court had also an occasion to consider the scope of section 154 of the Income Tax Act in the case of Commissioner of Income Tax vs. Lakshmi Vilas Bank reported in 2010 329 ITR 0591 and held that the expre ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r interest payments cannot be ascertained. Hence, the omission claimed by the Appellant/Assessee will not fall under the category of a mistake apparent from the record . The judgment relied upon by the learned counsel for the Appellant/Assessee in the case of Commissioner of Income Tax vs. Pruthvi Brokers and Shareholders Pvt. Ltd. reported in (2012) 252 CTR 0151 referred to supra will not apply to the case on hand as it was not a decision rendered under Section 154 of the Income Tax Act as its scope falls on a narrow compass involving mistakes apparent from the record . 17.Circular No.14 (XL-35 1955 dated 11.04.1955) has no bearing to the facts of the present case as the payment of interest to IDBI was never disclosed by the Appellant/Assessee in the income tax returns. Unless and until, the tax returns disclosed interest payments, it is impossible for the assessing officer to assist the Appellant/Assessee to rectify the alleged mistake of omission to claim deduction for interest payments under section 43B of the Income Tax Act. 18. For the foregoing reasons, the concurrent findings of the authorities below does not suffer from any perversity or illegality and the su ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
