TMI Blog1985 (3) TMI 94X X X X Extracts X X X X X X X X Extracts X X X X ..... d out that the liability of Rs. 31.8 lakhs cannot be treated as part of the capital employed in view of the retrospective amendment of section 80J. According to the department, it would show that there is a mistake which requires rectification. 3. The Finance Act, 1980 has amended the provisions retrospectively and as per the amended provisions, it is not open for the assessee to include this amount of Rs. 31.8 lakhs as part of the capital employed. As per the amended provisions, therefore, the order of the Tribunal would be a mistake and it should be rectified under section 254(2) of the Act. 4. Shri Dastur appearing for the assessee, however, submitted that there is no mistake which is capable of being rectified under section 254. He ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... happened was that the step for rectification was taken before the amendment. In such a situation, the decision of the Court was right. But, in this case, i. e., where rectification proceedings are taken up after the amendment, the High Court has pointed out that the Supreme Court decision in the case of M. K. Venkatachalam, ITO v. Bombay Dyeing Mfg. Co. Ltd. [1958] 34 ITR 143 and S. A. L. Narayan Row v. Ishwarlal Bhagwandas [1965] 57 ITR 149 would be applicable and it could be treated as a mistake apparent from the records. Thus, the decision relied on by Shri Dastur is distinguishable on facts. 6. It was next submitted that the Tribunal has merely followed the decision of the Special Bench of the Tribunal in the case of Amar Dye-Chem. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ld that the rectification is not possible. In this case, further proceedings are pending. In the earlier paragraph, Shri Dastur had himself pointed out that the reference was pending. Since further proceedings are pending, the ratio of the Bombay High Court is not applicable. Shri Dastur has also referred to a decision in the case of Padmavati Jaykrishna v. CWT [1976] 105 ITR 115 (Guj.). That was a case which turned on the fact that while a part of the amendment was retrospective, another part, i. e., the Explanation, was not retrospective. We don't have any such difficulties in section 80J(1A). Therefore, that decision also has no relevance. 9. Lastly, it was submitted that the Tribunal's order was passed on 29-9-1979 and rectification, ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
