TMI Blog1970 (8) TMI 29X X X X Extracts X X X X X X X X Extracts X X X X ..... pective assessment years 1957-58, 1958-59 and 1959-60 were made on 22nd September, 1958, 28th September, 1958, and 27th October, 1959. The petitioner did not prefer appeals against the orders of assessment. Subsequently, however, the petitioner came to know from a decision given by the Income-tax Appellate Tribunal that the amounts claimed by it in respect of provision for taxation were deductible in computing the net wealth of the petitioner within the meaning of section 2(m) of the Wealth-tax Act, 1957. The petitioner thereupon made applications to the Wealth-tax Officer for rectification of the orders of assessment under section 35 of the Wealth-tax Act, 1957, on the ground that there was an error apparent on the face of the record in each case in so far as the amounts claimed by the petitioner in respect of provision for taxation were wrongly disallowed and added back by the Wealth-tax Officer. The applications were rejected by the Wealth-tax Officer by a composite order dated 24th April, 1962. The only ground given by the Wealth-tax Officer for rejecting the applications was that there was no error of law apparent on the face of the record in the assessment orders and section ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... enue did not contest the position and, indeed, having regard to the decision of the Supreme Court in Kesoram Industries case, it was not possible for them to do so, that the amount claimed as provision for taxation was a " debt owed " within the meaning of section 2(m) of the Wealth-tax Act, 1957, and was, therefore, deductible in computing the net wealth of the petitioner on the relevant valuation date. But the contention raised by them was that the assessment orders did not disclose any error of law apparent on the face of the record and, in any event, so far as the orders of the Wealth-tax Officer and the Commissioner of Wealth-tax refusing rectification were concerned, there was no error of law apparent on the face of the record which would attract the certiorari jurisdiction of this court. The revenue also urged that in any event this court should not interfere in the exercise of its discretion under article 226 of the Constitution since the petitioner did not adopt the statutory remedy of an appeal for challenging the orders of assessment but preferred applications for rectification and the applications for rectification were disposed of at a time when there was no decisio ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d the Commissioner of Wealth-tax committed no error of law apparent on the face of the record in rejecting the petitioner's applications for rectification of the assessment orders. To attract the provisions of section 35 of the Act, and to bring the error, if any, in an assessment order within the meaning of the expression " mistake apparent from the record ", it was urged that what must be shown is that the mistake was committed at the time of the making of the order and not that the order was ultimately found to suffer from an infirmity or a mistake was subsequently discovered in the order as a result of later judicial pronouncements. It was strenuously contended that neither the decision of this court in Raipur Manufacturing Company's case nor the decision of the Supreme Court in Kesoram Industries and Cotton Mills'case was pronounced before the Wealth-tax Officer made the assessment orders in the petitioner's cases and since the law was not yet settled as on the date of the said assessment orders, it could not be said that the assessment orders disclosed any mistake of law apparent from the record. The submission in other words was that the assessment orders were proper and val ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... se committed an error of law apparent on the face of the record in rejecting the petitioner's revision application. We find further that at least on the date of the decision of the Commissioner of Wealth-tax rejecting the revision applications of the petitioner directed against the order of the Wealth-tax Officer refusing to exercise the powers conferred under section 35 of the Act, the decision of this court in Raipur Manufacturing Company's case was already pronounced. The decision of this court in Raipur Manufacturing Company's case was given on October 15 and 16, 1962, whereas the decision of the Commissioner of Wealth-tax in the revision application preferred by the petitioner was given on March 23, 1964. In fact, we find that in the memo of revision application presented by the petitioner to the Commissioner of Wealth-tax, a copy of which is annexed as " exhibit B, collectively " to the petition, pointed reference has been made to the decision of this court in Raipur Manufacturing Company's case and the Commissioner of Wealth-tax was invited to exercise his revisional jurisdiction so as to give effect to the said decision. We are of the opinion that, in these circums ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the effect that an order of rectification of the nature passed by the Income-tax Officer in the circumstances of that case would be without jurisdiction, it could not be said that the impugned order disclosed an error of law apparent on the face of the record. Negativing this argument, S. T. Desai J., speaking for the Division Bench, observed at page 543 of the report : " The argument is not tenable and for this reason. When the court decides a matter it does not make the law in any sense but all it does is that it interprets the law and states what the law has always been and must be understood to have been. A question of error of law apparent on the face of the record does arise on this petition and what we have to see is whether at the date of the petition, the petitioner is able to establish from the record including the order of the Commissioner of Income-tax that there is an error of law apparent on the face of the record. Therefore, it is in the light of the decision in Shantilal Rawji's case, that we have to examine the order of the Commissioner of Income-tax and if that be done--- and we have no doubt that that is the only correct approach in these matters---it is diffi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the record, the assessee would be entitled to invoke the jurisdiction of the Wealth-tax Officer to rectify the said mistake and the application cannot be thrown out either on the ground that the finality of the original assessment order cannot be taken away by invoking the power of rectification on the basis of the decision of the court subsequently rendered or on the ground that the said order having become final, since no appeal was preferred, therefore, the power of rectification cannot be exercised. As regards the further contention on behalf of the revenue that we should not exercise our discretion under article 226 of the Constitution in favour of the petitioner in the circumstances of the case, we are satisfied that no grounds are made out by the respondents for denying to the petitioner the relief he has prayed for when we find that he has succeeded in showing that the impugned orders suffer from the vice of an error of law apparent on the face of the record. The only ground urged on behalf of the revenue for not exercising the discretion in favour of the petitioner was that the petitioner has not adopted the statutory remedy of an appeal for challenging the orders of asse ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
