TMI Blog2005 (9) TMI 239X X X X Extracts X X X X X X X X Extracts X X X X ..... Ltd. [ 2005 (1) TMI 13 - SUPREME COURT] and Calcutta High Court in case of Premier Polymers (P.) Ltd.[ 1990 (1) TMI 310 - CALCUTTA HIGH COURT] , it is apparently clear that the above amount received by the assessee prior to his elevation could not be taxed and, therefore, the assessee has rightly moved a petition u/s 154 to rectify the intimation sent by Assessing Officer, and the Assessing Officer was well-competent to rectify such intimation in view of the provision as laid down in sections 143(1)(ii) and 154(2)(b) of the Act and in view of the decision by the Hon'ble Calcutta High Court in case of Bhaskar Mitter [ 1994 (12) TMI 327 - HIGH COURT OF CALCUTTA] and in case of Premier Polymers (P.) Ltd. We, therefore, we are of the considered opinion that the ld. CIT(A) while deciding the above two issues has passed a well reasoned and speaking order which does not call for any interference from our side. We, therefore, uphold the same and reject the grounds raised by the revenue. In the result, the appeal filed by the revenue is dismissed. - HON'BLE D.K. TYAGI, JUDICIAL MEMBER AND JUGAL KISHORE, ACCOUNTANT MEMBER For the Appellant : S.K. Jain, Adv. For the Respondent : J.P ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... igh Court in case of Justice R.M. Datta has held that sum received by an assessee by way of receipts of professional fees for professional services rendered before he was appointed as a Judge, were not taxable under section 28 or under section 56 or under section 176(4) of the Income-tax Act, 1961. The assessee further contended that the Hon'ble Calcutta High Court followed the judgment of the Hon'ble Supreme Court in case of Nalinikant Ambalal Modi v. S.A.L. Narayan Row, CIT [1966] 61 ITR 428. The assessee also relied on a recent judgment of the Hon'ble Supreme Court in case of CIT v. D.P. Sandhu Bros. Chembur (P.) Ltd. [2005] 273 ITR 1, wherein it was held that if a particular income could not be taxed under section 45, it cannot otherwise be taxed under section 56 or it could not be taxed at all. 5. The assessee further submitted before the ld. CIT (A) that the Assessing Officer was competent under section 154 of the Act to rectify the mistake and pointed out that the Assessing Officer cannot assess an amount which is not taxable in law even if the same is shown by the assessee as taxable and relied on the judgment of the Hon'ble Calcutta High Court in case of CI ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... er did not have any power to alter the total income as declared by the assessee. The ld. D.R. has further stated that scope of section 154 is limited and could not be invoked in case of debatable issue and relied on the judgment of the Hon'ble Supreme Court in case of T.S. Balaram, ITO v. Volkart Bros. [1971] 82 ITR 50. It has, therefore, been pleaded by the ld. D.R. that CIT(A) was not justified in directing the Assessing Officer to rectify the intimation and, therefore, such order of CIT(A) was liable to set aside and the order of Assessing Officer ought to be restored. 9. In his rival submission, the ld. counsel for the assessee has relied heavily on the order of ld. CIT(A) and has reiterated his submission made before him. The ld. counsel has further relied on the judgment as cited before the ld. CIT(A). The ld. counsel has submitted that in view of the above facts it is apparently clear that the above receipt was neither taxable under section 28 nor under section 56 of the Act and, therefore, so far as taxability of the above case is concerned, the same could not be taxed in the hands of the assessee as held by the Hon'ble Calcutta High Court in case of Justice R.M. Du ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ty of the amount is concerned as held that the above receipt could not be taxed in the hands of the assessee either under section 28 or under section 56 of the Act in view of the decision by the Hon'ble Calcutta High Court in case of Justice R.M. Dutta. The ld. CIT(A) has further observed that the Assessing Officer has jurisdiction to rectify the intimation under section 143(1)(a) under section 154 in the present case. 12. We first take up the issue regarding taxability of the receipt by the assessee. So far as the taxability of the above receipt in the hands of the assessee is concerned, in our considered opinion, the ld. CIT(A) was justified in holding that the above receipt was not taxable under section 28 or 56 or under section 176(4) of the Income-tax Act keeping in view the decision of the Hon'ble Calcutta High Court on identical issue in case of Justice R.M. Datta, wherein it was held as under:- Held , that it was admitted that the assessee had been maintaining his accounts on receipt basis. It was also admitted that the sums in question had been received by the assessee by way of receipts of professional fees for the professional services rendered by the assessee be ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n 154(2)(b) reads as under:- Subject to the other provisions of this section, the authority concerned- (b) shall make such amendment for rectifying any such mistake which has been brought to its notice by the assessee. The above definition clearly laid down that the Assessing Officer is well-competent to rectify any mistake, which is brought to its notice by the assessee also and, therefore, the observation of Assessing Officer and the ld. D.R., that such mistake committed by the assessee could be rectified vide revised return only, does not stand at all. As the above provision laid down in section 154(2)(b) clearly suggests the jurisdiction is available to the Assessing Officer under section 154, in case the mistake is brought to his notice by the assessee also. 17. Even otherwise the Assessing Officer cannot assess an amount which is not taxable in law even if the same is shown by the assessee as held by the Hon'ble Calcutta High Court in case of Bhaskar Mitter, wherein it was held as under:- The revenue authorities, in our view, cannot be heard to say that merely because the assessee has returned a figure which is higher than the annual value determined in accordance with th ..... X X X X Extracts X X X X X X X X Extracts X X X X
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