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TMI Blog1988 (2) TMI 115X X X X Extracts X X X X X X X X Extracts X X X X ..... [1975] 100 ITR 347 and Sharda Prasad v. CIT [1975] 100 ITR 373. The present ITO, therefore, issued to the appellant a notice u/s 154(3) on 16-11-1984 proposing withdrawal of the deduction allowed to her by the then ITO vide orders u/s 154 dated 26-6-1981 and 27-6-1981. After taking into consideration her reply to the aforesaid notice he rectified u/s 154 the orders that his predecessor had passed on the date, mentioned above and withdraw the aforesaid deduction by his orders under appeal." 2. The learned Commissioner of Income-tax (Appeals) held the ITO to be justified in passing orders u/s 154 of the IT Act, 1961 on 26-6-1981, and 27-6-1981, i.e., those orders of the ITO whereby deduction earlier allowed by the ITO (u/s 154 of the Act) was withdrawn. The learned AAC on his part strongly relied on the decisions as Anchor Pressings (P.) Ltd. v. CIT [1975] 100 ITR 347 (All.), Sharda Prasad v. CIT [1975] 100 ITR 373 (All.) and Omega Sports Radio Works v. CIT [1982] 134 ITR 28 (All.). He distinguished the reliance of the assessee on the cases as Bengal Assam Steamship Co. Ltd. v. CIT [1978] 114 ITR 327 (Cal.), Shree Jagannath Dall Mills v. ITO [1982] 30 CTR (Trib.) 8 (Delhi), Gadi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... and the Hon'ble Allahabad High Court, inter alia, held that " moreover section 84 limits the relief to 6 per cent of the capital employed in the undertaking. The capital employed is to be computed in accordance with Rule 19. No such computation has been made. Clearly, the facts upon which Section 84 operates were not on the record." 10. The above observations and the reasoning of the Hon'ble High Court clarify the rationale behind the above two decisions. In fact, to support the claim of the assessee in the above two cases, which were before the Hon'ble High Court, the facts were not on the record, hence those decisions were rendered on those facts. Those decisions of the Hon'ble High Court as such become distinguishable on the facts of the assessee's case where facts were there and these were undisputed one. 11. Next is the decision in Omega Sports Radio Works' case this has been rendered by the Hon'ble Allahabad High Court in the case of Omega Sports Radio Works. The head note reads as under : "A mistake apparent from the record must be an obvious and patent mistake and not something which can be established by a long drawn process of reasoning on points on which there ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n respect of income chargeable under sub-section (1), income-tax shall be deducted at the source or paid in advance, where it is so deductible or payable under any provision of this Act." 16. A reading of the above section makes it clear that income tax shall be charged, 'in accordance with and subject to the provisions of the Act'. 17. Section 143 of the Act deals with the topic, 'assessment' and if the ITO is satisfied about the correctness of a return filed by the assessee u/s 139 of the Act, he will make the assessment accordingly but if he thinks otherwise then under sub-section (3) of the said section 143 after service of a notice under sub-section (2) of the same section 143 of the Act, a day is specified, i.e., a hearing is fixed and after 'hearing such evidence as the assessee may produce and such other evidence as the ITO may require, on specific points and after taking into account all relevant material which he has gathered', assessment is to be framed. Now this sub-section (3) of section 143 speaks of three things : (1) Such evidence as the assessee may produce; (2) such other evidence as the ITO may require; and (3) After taking into account all relevant m ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he may be sure of getting a square deal from the department. Although, therefore, the responsibility for claiming refunds, and relief rests with assessees on whom it is imposed by law, officers should : (a) draw their attention to any refunds or reliefs to which they appear to be clearly entitled but which they have omitted to claim for some reason or other; (b) freely advise them when approached by them as to their rights and liabilities and as to the procedure to be adopted for claiming refunds and reliefs. 4. Public Relation Officers have been appointed at important centers, but by the very nature of their duties, field of activity is bound to be limited. The following examples (which are by no means exhaustive indicate the attitudes which officers should adopt : 1. Section 17(1) of the 1922 Act (section 113 of the 1961 Act) while dealing with the asstt. of a non-resident assessee the officer should bring to his notice that he may exercises the option to pay tax on his Indian income with reference to his total world income if is to his advantage. 2. Section 18(3), (3A) and (3D) of the 1922 Act [Secs. 193, 197(1), 195(1), 195(2) and 194 of the 1961 Act] The officer sho ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... liament only conferred on it the jurisdiction on condition that it decide in accordance with the law. On the facts of this case the invoking of section 154 second time by the jurisdiction of the income-tax Officer for withdrawing section 80U relief was outside the jurisdiction of the income-tax Officer, hence the action was void. 21. The assessments for the years in appeal were framed without allowing the assessee deduction u/s 80U of the Act to which she was entitled to, on facts and in law, and in our considered opinion, the said assessments being not 'in accordance with and subject to the provisions of the Act' were erroneous and by invoking section 154 of the Act, ITO not only rectified the Asstt. but in fact, rectified his mistakes and made the asstt. order in accordance with and subject to the provisions of the Act. What he did at the original stage by invoking section 154 of the Act was not to undo an injustice but to correct and rectify his jurisdiction because earlier assessments being not in accordance with law, 'no one gets a vested right in an erroneous order'. 22. Subsequent action U/S 154 of the Act whereby deduction allowed u/s 80U of the Act was withdrawn not on ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of Umed v. Raj Singh AIR 1975 SC 43 at page 58 observed that "it is also settled law of the land that they party cannot suffer for the mistake of the authority and the authority and the concerned cannot perpetrated illegality and miscarriage of justice, rather it is a judicial compulsion to rectify one's own mistake." 26. The Hon'ble Calcutta High Court has also in a case of [1982] 10 ELT 902 at page 903 observed that 'it is well settled that quasi judicial authorities exercising statutory powers cannot act contrary to law nor can they take advantage of their own illegality.' 27. Yet further we will like to quote the Hon'ble Supreme Court of India in B. R. Ramabhadrish v. Secretary AIR 1981 SC 1653 wherein their Lordships have observed, 'as far as possible the anxiety and endeavour of the Court should be to remedy an injustice, when it is brought to its notice rather deny relief to an aggrieved party on purely technical and narrow procedural grounds.' 28. So far so good, on the facts and in the circumstance of the case, with which we are presently seized of, we will hold that, in the face of undisputed facts on record, grant of deduction to the assessee u/s 80U of the Act by ..... X X X X Extracts X X X X X X X X Extracts X X X X
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