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TMI Blog1980 (4) TMI 83X X X X Extracts X X X X X X X X Extracts X X X X ..... that wealth-tax was not a permissible deduction. But later on in the decision in the case of Indian Aluminium Co. Ltd. v. CIT [1972] 84 ITR 735, the Supreme Court held that wealth-tax was deductible from the computation of income in certain specified cases. Following the later decision, the Tribunal held in the instant case that the wealth-tax paid by the assessee amounting to Rs. 37,879 was business expenditure and as such deductible. Meanwhile, the Income-tax (Amendment) Ordinance was promulgated by the President of India on 16th July, 1972, and thereafter it was followed by the Income-tax (Amendment) Act, 1972. As some arguments were made in respect of the same it is relevant to set out s.2 and s. 4 of the said Act : "2. Amendment of section 40.-In section 40 of the Income-tax Act, 1961 (43 of 1961) (hereinafter referred to as " the principal Act "), after sub-clause (ii) of clause (a), the following sub-clause shall be, and shall be deemed always to have been, inserted, namely : `(iia) any sum paid on account of wealth-tax ....... .. ' " "4. Wealth-tax not deductible in computing the total income for certain assessment years. Nothing contained in the Indian Income-tax Act, 1 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... " Whether, on the facts and in the circumstances of the case and in view of the Income-tax (Amendment) Act, 1972 the Tribunal was right in holding that there was no rectifiable error in its order dated 12th July, 1972, and in that view dismissing the miscellaneous application made by the department? " We now proceed to consider the merits of this question. We have set out the relevant provisions of s. 2 as well as s. 4 of the Act. In this case even though the return was for the assessment year 1958-59, it is not clear nor does it appeal from the facts before us whether the return for the relevant assessment year was filed after the coming into operation of, the I.T. Act, 1961, because if the return was filed prior to the coming into operation of the Act of 1961, then, in view of the provisions of a. 297(2)(a), it would be guided by the old Act but if it was filed after the new Act came into operation, except in certain specified cases, which is not the case here, assessment proceedings would have to be completed under s. 297(2)(b) in terms of the provisions of the I.T. Act, 1961. But in both cases either s. 2 of the Amending Act which we have referred to as the Act of 1972 or s ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 143, where the Supreme Court held that the provision of the section, the amendment of which should be deemed to come into effect in April, 1952, was that the amendment of the section must be deemed to have been included in the principal Act from that day, 1st April, 1952, for all purposes and, therefore, consequently the assessment order which was inconsistent with that provision must be a mistake apparent from the record. In the case of S. A. L. Narayan Row v. Ishwarlal Bhagwandas [1965] 57 ITR 149 (SC), the same principle was reiterated by the Supreme Court. Our attention was also drawn to a decision of this court in the case of CIT v. General Electric Co. of India Ltd. [1978] 112 ITR 246, which we have mentioned hereinbefore. In that case deduction was allowed for the assessment years 1957-58 and 1958-59 in respect of the amount of wealth-tax paid by the assessee. The assessment was made in 1960 under the Act of 1922. Subsequently an amendment was made in 1972 in the Act of 1961, which laid down that wealth-tax was not deductible. The amendment was made with retrospective effect from the commencement of the Act of 1961. On the question whether the allowance of wealth-tax in tha ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d. [1958] 34 ITR 143 and S. A. L. Narayan Row Ishwarlal Bhagwandas [1965] 57 ITR 149, in our opinion, there was certainly a mistake apparent from the record. Now, the Tribunal has referred to the fact that there was finality in the order passed. Section 254, sub-s. (2), authorised the Appellate Tribunal at any time within four years from the date of the order with a view to rectify a mistake from the record to amend " any order " passed by it under sub-s. (1) and make such amendment if the mistake is brought to the notice of the Tribunal. Therefore, the amplitude of the expression of " any order " includes the final order, the order passed by the Tribunal in disposing of the appeal, and if there is a mistake apparent from the record even though it finally disposed of the appeal, and s. 254(2), in our opinion, clearly authorised the Tribunal to rectify such a mistake provided such a mistake was apparent from the record. The Division Bench of the Gauhati High Court in the case of CIT v. Smt. Eva Raha [1980] 121 ITR 293 held that even though it was true that when the orders were passed by the Tribunal they were made in accordance with law as it then stood, s. 13 of the Amendment Act ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... turn for the relevant assessment year was filed before or after the coming into operation of the I.T. Act, 1961. This point was not canvassed before the Tribunal as to when the return was filed and under the provision of which Act would the return be considered. If that is the position, we are not in a position to consider whether the Indian I.T. Act, 1922, was attracted and as such there was no scope for any reference. The Tribunal has declined to exercise its power under s. 254(2) of the I.T. Act, 1961, on the plea of the finality of this order. Thus, we are unable to accept that position. On that basis there is no question for any debate or doubt. If there was any scope for any debate or doubt as to whether the assessment was made under the 1922 Act or the 1961 Act, different considerations might have arisen. But that debate or, doubt was not raised before the Tribunal and it is not open for any party to raise that controversy before us for the first time. In the aforesaid view of the matter, we answer the question as reframed by saying that the Tribunal was not right and was wrong in dismissing the application. The answer is in favour of the revenue. In the facts and circumst ..... X X X X Extracts X X X X X X X X Extracts X X X X
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