TMI Blog1982 (3) TMI 42X X X X Extracts X X X X X X X X Extracts X X X X ..... ent made on March 28, 1970, for the assessment year 1950-51 in pursuance of section 147(a) of the Income-tax Act, 1961, constituted a mistake apparent from record which could be rectified under section 154 of the Income-tax Act, 1961 ? (2) Whether, on the facts and in the circumstances of the case, the Appellate Tribunal was justified in cancelling the order under section 154 for the assessment year 1950-51 passed by the Income-tax Officer ? " The facts found by the Tribunal, stated in brief are that the assessee, an HUF, had income by way of share of profits from certain firms, income from property and dividends. For the assessment year 1950-51, the assessment was completed on February 28, 1955, and the total income was determined at a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... evshanker Bhatt [1969] 72 ITR 595. The ITO rejected that application by his order dated March 24, 1972, for the following reasons: that the assessee had not taken any objection as to the jurisdiction of the ITO as required under s. 124(5) of the Act, that the decision in J. P. Jani's case was not applicable to the facts of the instant case because the concealments for the assessment years 1950-51 to 1960-61 amounted to more than rupees one lakh, that the reassessment was made on the basis of a settlement arrived at with the assessee and, lastly, that the assessee had also filed a revision under s. 264 of the Act before the Commissioner, Delhi (Central), on the same point. Aggrieved, the assessee filed an appeal. The AAC agreed with the re ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he ITO could issue a notice under cl. (a) of sub-s. (1) before eight years have elapsed after the expiry of the year in respect of which assessment was proposed to be taken, " unless(if) the income profits or gains chargeable to income-tax which have escaped assessment or have been under assessed or assessed at too low a rate or have been made the subject of an excessive relief under this Act, or the loss or depreciation allowance which has been computed in excess , amount to or are likely to amount to one lakh of rupees or more in the aggregate, either for that year, or for that year and any other year or years after which or after each of which eight years have elapsed not being a year or years ending before the 31st day of March, 1941. I ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... we are not inclined to agree with the above submission. As noted above the eight years period of limitation could be extended only if the escaped, income exceeded rupees one lakh either for the year under consideration or; for that year and the year or year after which or after each of which eight years have elapsed. The main ground given by the ITO for rejecting the assessee's application under s. 154 of the Act was: "After looking into the records it is also found that the concealment for the assessment years 1950-51 to 1960-61 amounts to, more than rupees one lakh." The view was patently erroneous because any alleged concealment of income for the assessment years subsequent to 1950-51 could not have been aggregated in order to reope ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... er section 34." As, for the additions of Rs. 13,452, Rs. 16,772 and Rs.17,658 made by the ITO in the assessments for the assessment years: 1954-55, 1955-56 and 1956-57, respectively, to which reference was made at the time of hearing, it was observed that those amounts had been deleted on appeal, but certainly they could have entered into the calculation of the ITO. However, he could not have considered these amounts for assuming jurisdiction for the assessment year 1950-51, because for those three assessment years notices had been issued before eight years had elapsed. Therefore, those amounts could not be aggregated with the amount for the year 1950-51. The learned member also observed that the department could not be allowed to bring a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... isdiction to the ITO to make the assessment on that figure. The second aspect considered is that the conduct of the assessee had not been above board since it made no secret of it when it conceded concealment of income of over Rs. 71,030 and hence no indulgence in his case was called for. We do not think that the conduct of a party was at all relevant for the decision of the issue involved in the case. Even after giving this finding the learned judicial Member, to quote his own words, held: " in such discretionary matters I would not venture to differ ". We would have acceded to the submission made by the learned standing counsel if it had ever been the case of the department that while initiating proceedings for the year under considerat ..... X X X X Extracts X X X X X X X X Extracts X X X X
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