TMI Blog1988 (12) TMI 140X X X X Extracts X X X X X X X X Extracts X X X X ..... s under consideration. The assessments for the two assessment years were completed by the ITO on 30-11-1984 and 19-12-1984 respectively. In respect of the two assessment years the assessee moved separate applications u/s. 154 on 23-10-1986 and 13-11-1986 respectively praying that as per double taxation agreement in force between the Govt. of India and the Govt. of Malaysia, double taxation benefit should be allowed to the assessee-company. It was pointed out that necessary certificate from the Malaysian company had already been filed along with the returns for the two assessment years. The mistake in not allowing double taxation benefit was stated to be a mistake apparent from record. The ITO vide his letter dated 13-11-1986 addressed to the Principal Officer of the assessee-company informed the assessee that its claim could not be acceded to by way of rectification of any apparent mistake as envisaged in sec. 154. This letter of the ITO relating to both the assessment years thus contained his order rejecting the assessee's applications u/s. 154 for the two assessment years. 3. The assessee then went up in appeal before the CIT (Appeals) against the order of the ITO rejecting the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... so far as this assessment year is concerned, the ITO was fully aware of the existence of foreign dividend. He should have, therefore, allowed relief u/s. 90 even if such relief had not been claimed. It was thus held that the rectification application should have been allowed. He accordingly directed the ITO to allow due relief u/s. 90 on Malaysian dividend as claimed by the assessee. Against the order of the CIT (Appeals) confirming the order of the ITO for the assessment year 1982-83, the assessee has come up in appeal before the Tribunal whereas the department feeling aggrieved by the order of the CIT (Appeals) relating to the assessment year 1983-84, has come up in appeal before the Tribunal for that assessment year. 5. Shri K.V. Singh, appearing for the assessee, has submitted before us that all necessary facts and evidences were before the ITO for both the assessment years on the basis of which the assessee was entitled to double taxation relief u/s. 90 in accordance with the agreement for avoidance of double taxation between the Govt. of India and the Govt. of Malaysia. In this connection, it was pointed out that for both the assessment years the assessee had filed before ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 7 and CIT v. Oriental Co. Ltd. [1982] 137 ITR 777. 7. In reply, Shri Singh submitted that the assessee by moving applications u/s. 154 was not claiming credit for the tax deducted at source in respect of foreign dividend. The assessee merely claimed relief u/s. 90 on the basis of the agreement for avoidance of double taxation which existed between the Govt. of India and the Govt. of Malaysia. 8. We have considered the rival submitions as also the facts on record. The ITO's records have also been made available to us for both the two assessment years and the same have been perused by us. The agreement for avoidance of double taxation existing between the Indian Govt. and the Malaysian Govt. was also in force during the accounting years relevant to the assessment years under consideration. There is also no dispute that for both the assessment years the assessee received dividend income from the Malaysian company. Before the ITO the assessee filed statements of dividend received during the financial year 1981-82 and financial year 1982-83 being accounting years for the two assessment years under consideration. Copies of these statements have also been filed before us. They clearly ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Malaysian company was subjected to tax in that country. There was an agreement for avoidance of double taxation between the Govt. of India and the Govt. of Malaysia which was in force at the material time. From all these facts it was evident that the assessee was entitled to double taxation relief u/s. 90 on the basis of the agreement for avoidance of double taxation. It was the bounden duty of the ITO to allow relief u/s. 90 on the basis of the facts which were available on the record while framing assessments for the two assessment years. On account of his failure to do so, the assessments for the two assessment years suffered from a mistake apparent from record. The rectification of that mistake did not require investigation into facts, arguments or proof as all relevant facts were already there on the record of the ITO. In Anchor Pressings (P.) Ltd.'s case, the assessee had not made any claim for relief u/s. 84 of the IT Act, 1961 and the assessment was made without granting that relief. Even in an appeal to the AAC, no claim for relief u/s. 84 was made. Thereafter, the assessee moved an application for rectification asking for the relief u/s. 84. On these facts it was held by ..... X X X X Extracts X X X X X X X X Extracts X X X X
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