9911796707
TMI Blog1984 (3) TMI 26X X X X Extracts X X X X X X X X Extracts X X X X ..... the tax as unregistered firm as per provisions of s. 271(2), deduction should have been allowed in respect of annuity deposit payable by the firm as if it were an unregistered firm. It was pointed out that since the penalty had been Wrongly calculated, there was a mistake apparent on the face of the record deserving rectification under s. 154. The prayer was declined by the IAC on 5th August, 1975, vide order annexure " A ". The assessee appealed unsuccessfully before the Income-tax Appellate Tribunal, Amritsar Bench, as per order dated June 7, 1976, annexure " B ". The assessee then preferred two reference applications under s. 256(1) requiring two questions of law, quoted hereafter to be referred to this court for opinion: "1. Whether ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 18 of 1977 (CIT v. Jawahar Woollen Textile Mills-since reported in[1984] 148 ITR 393 (P & H)). Amusingly, we find from the record of that case that the same Tribunal (consisting of the same members in disposing of the appeal) had on June 8, 1976 (a day after the decision in the present case) allowed the claim of the then assessee holding that while assessing the total income under s. 280-0, the amount of annuity deposit had to be deducted and that such deduction should be allowed in computing the amount of penalty payable by the firm if unregistered. The view was taken on the basis of CIT v. Gujarat Automobiles [1976] 105 ITR 588 (Guj). At the instance of the Revenue, the question which was referred by the Tribunal before us was, " Whether, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... facts and in the circumstances of the case, the Tribunal was justified in holding that it was not rectifiable under s. 154 of the Act. The learned counsel for the assessee maintained that the mistake in not deducting the annuity deposit on notional basis from the total income of the firm treating it as unregistered for the purpose of calculating penalty under s. 271(1)(c) was a mistake apparent on the face of the record, inasmuch as it was an obvious and a patent one deserving rectification under s. 154 without, much ado. It is further maintained that no elaborate reasoning was needed on any point on which there could conceivably be two opinions and the point of law was not even debatable, as practically every High Court in the country ha ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rom the total income of the firm treating it as unregistered for the purpose of calculating penalty under s. 271(1)(c) ...... We, therefore, hold that the provisions of section 154 of the Income-tax Act are not applicable in this case........ (Tribunal) According to the learned counsel, the Tribunal had treated the matter of deduction of annuity deposit on notional basis from the total income of a registered firm as debatable and open to more than one interpretation. It is further argued that till this court came to settle the matter in Jawahar Woollen Textile Mills' case [1984] 148 ITR 393 (P & H) on February 3, 1984, the matter remained debatable and capable of more than one interpretation. And on that score it was maintained that on the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... om referring the sought for question No. 1 to this court by confining, the question referred, to the limited extent for determining, whether the mistake occurred was rectifiable under s. 154. In this view of the matter and especially on the afore-extracted passages from the two respective orders of the IAC and the Tribunal, we are of the view that no positive finding was recorded by the income-tax authorities on the question of deduction of annuity deposit on notional basis from the total income of registered firm. The matter which was left swinging initially was stilled only in the reference order as innately it was taken that there was a mistake apparent on the face of the record in not deducting annuity deposit on notional basis. In Jawa ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t would certainly come within the purview of s. 154 as a mistake apparent on the face of the record. In that case, there was a mistake in the allowance of relief under s. 80M because of a misreading of s. 80A. In that context, it was held that it was a mistake apparent on the record which can be rectified under s. 154. Somewhat analogous is the situation here. We are thus of the considered view that the mistake was rectifiable. The Tribunal was in error on that score.
Accordingly, for the view taken above, the question referred is answered in the negative, that is, in favour of the assessee and against the Revenue. The assessee shall get its costs.
RAJENDRA NATH MITTAL J.-I agree.
X X X X Extracts X X X X X X X X Extracts X X X X
|
