TMI Blog1985 (1) TMI 108X X X X Extracts X X X X X X X X Extracts X X X X ..... on facts in holding that a mistake of law apparent from the record within the meaning of section 154 of the Income-tax Act has occurred in the above noted case while making a provisional assessment under section 141A of the Income-tax Act. " 2. The assessment year involved is 1980-81. After the income-tax return was filed by the assessee, provisional assessment was framed by the ITO under section 141A(3) of the Income-tax Act, 1961 ('the Act') and a refund was granted. The ITO in the course of framing the provisional assessment had made certain disallowances on account of deduction under section 80J of the Act. The assessee considering that the said adjustment regarding relief under section 80J in the form of reducing the relief was not p ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ation application was fixed for hearing for 23-4-1980 vide the ITO's letter dated 19-4-1980 but its hearing was advanced on request of the assessee's counsel for 19-4-1980. No sooner the ITO rejected the assessee's claim on 19-4-1980, on that very date appeal was filed and on request of the assessee's counsel for an early hearing, the appeal was heard on 21-4-1980 and decided on 28-4-1980, He was, however, fair enough to admit that regular assessment in this case was framed on 25-3-1983 and in that case the revenue has accepted the assessee's claim on merit regarding relief under section 80J on the basis of contentions made in the application under section 154. He submitted that whatever claim was made by the assessee in rectification appli ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 0 and naturally, was in hurry to get back its refund, which was more than a crore, to be specific it was Rs. 1,24,86,108. With this submission in the background, the learned counsel for the assessee submitted that there was nothing wrong if the assessee hurried the disposal of the matter at both the stages, before the ITO for provisional assessment and rectification and before the Commissioner (Appeals). He submitted that there is no question of debate in respect of issues raised by the assessee in rectification application. Actually, if section 141A is read carefully, it is only certain types of additions which are warranted thereunder. Denial of relief under section 80J in a way the ITO has resorted to, is not prima facie a disallowance w ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ovisional assessment, which is very common, as normally is considered as a deal. What we are surprised to look at is that in the course of provisional assessment, as well detailed by the Commissioner (Appeals) in paras 11 to 13 of his order and, going through the said section carefully, which is also extracted and placed by the Commissioner (Appeals) in his order, denial of relief to the extent of Rs. 28,68,073 on account of relief under section 80J was not a prima facie disallowance. As observed by the Commissioner (Appeals) in para 12(c) of his order, the said amount comprised of two disallowances : (i) On account of reason given at serial Nos. (v) of para 5, Rs. 1,73,469 mentioned by the Commissioner (Appeals) in his order. (ii) On a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n points on which there could be two opinions could be there. Since the claim raised by the assessee in section 154 proceedings was free from debate, the said case could not be fatal to the assessee's claim. The other case was that of R.A. Boga, relied upon by the learned senior departmental representative finding in which was that the provisional assessment was not meant to merge in the regular assessment. This case also cannot come to the rescue of the revenue because of distinction in facts. If this judgment is gone through carefully, it, on the other hand, supports the contention of the assessee. Regarding the other part of the assessee's contention that computation of relief employed for section 80J relief could not be on proportionate ..... X X X X Extracts X X X X X X X X Extracts X X X X
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