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TMI Blog1988 (2) TMI 117X X X X Extracts X X X X X X X X Extracts X X X X ..... l). The present ITO, therefore, issued to the appellant a notice under s. 154 (3) on16th Nov., 1984proposing withdrawal of the deduction allowed to her by the then ITO vide orders under s. 154 dt.26th June, 1981. After taking into consideration her reply to the aforesaid notice he rectified under s. 154 the orders that his predecessor had passed on the date, mentioned above and withdraw the aforesaid deduction by his orders under appeal. 3. The learned CIT(A) held the ITO to be justified in passing orders under s. 154 of the IT Act, 1961 on 26th June, 1981 and 27th June, 1981, (sic) i.e. those orders of the ITO where by deduction earlier allowed by the ITO under s. 154 of the Act was withdrawn. The learned CIT(A) on his part strongly relied on the decisions reported as Anchor Pressing (P) Ltd. vs. CIT (1975) 100 ITR 347 (All (1975) 100 ITR 373 (All) and Omega Sports & Radio Works vs. CIT (1982) 28 CTR (All) 80 : (1982) 134 ITR 28 (All). He distinguished the reliance of the assessee on the cases reported as Bengal Assam Steamship Co. Ltd. vs. CIT (1978) 114 ITR 327 (Cal), Shree Jagannath Dall Mills vs. ITO (1982) 30 CTR (Trib) (Del) 80,12 TTJ page 182 (Trib.), 19 TTJ page 436 (All) ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... yed is to be competed in accordance with r. 19. No such computation has been made. Clearly, the facts upon which s. 84 operates were not on the record." 11. The above observations and the reasoning of the Hon'ble High Court clarity 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 record hence those decisions were rendered on those facts. Those decision of the Hon'ble High Court as such become distinguishable on the facts of this assessee's case where facts were there and these were undisputed one. 12. Next is the decision reported in (1982) 28 CTR (All) 80: (1982) 134 ITR 28 (All) : this has been rendered by the Hon'ble Allahabad High Court in the case of Omega Sports & Radio Works vs. CIT. 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 can be two opinions. If there is a decision on a particular point by the High Court of a State, it is binding on the IT authorities in that State and merely ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ncome-tax shall be charged, "in accordance with and subject to the provisions of the Act." 18. Sec. 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 under s. 139 of the Act, he will make the assessment accordingly but if he thinks otherwise then under sub-s. (3) of the said s. 143, after service of a notice under-sub s. (2) of the same s.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-s. (3) of s. 143 speaks of three things: (i) Such evidence as the assessee may produce; (ii) Such other evidence as the ITO may require; and (iii) After taking into account all relevant material which the ITO has gathered. 19. On the facts and in the circumstances of the present assessee, it being a matter of record, that she was totally blind, the assessment ought to have been framed, rather was statutorily required to have been framed after allowing the asses ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 centres, but by the very nature of their duties field of activity is bound to be limited. The following example (which are by no means exhaustive) indicate the attitude which officers should adopt: (1) Sec. 17(1) of the 192 Act (s. 113 of the 1961 Act) while dealing with the assessment of a non-resident assessee the officer should bring to his notice that he may exercise the option to pay tax on his Indian income with reference to his total world income if it is to his advantage. (2) Sec. 18 (3)(3A) and (3D) of the 1922 Act, s.193, 197(1), 195(1), 195(2) and 194 of the 1961 Act- The officer should in every appropriate case bring to the assessee's notice the possibility of obtaining a certificate authorising deduction of Income-tax at a rate less than the maximum or deduction of super tax at a rate lower than the flat rate, as the case may be. (3) Sec. 25(3) and 25(4) of the 1922 Act, -The mandatory relief about exemption from tax must be granted whether claimed or not; ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... o which she was entitled to, on facts and in law, and in our considered opinion, the said assessment being not 'in accordance with and subject to the provisions of the Act' were erroneous and by invoking s. 154 of the Act the ITO not only rectified the assessment but in fact, rectified his mistakes and made the assessment order in accordance with and subject to the provisions of the Act. What he did at the original stage of the Act. What he did at the original stage by invoking s. 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 CIT vs. Central India Industries Ltd. (1971) 82 ITR 555 (SC). 23. Subsequent action under s. 154 of the Act whereby deduction allowed under s. 80U of the Act was withdrawn not only was a controversial step but certainly could not have been invoked since there was no mistake apparent from the record. The decisions of the Hon'ble jurisdictional High Court having not been appreciated in toto, the said action was not tenable in law. We hold accordingly. In fact, the said action was not in terms of the ratio laid ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 27. The Hon'bleCalcuttaHigh Court has also in a case reported in (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.' 28. Yet further we will like to quote the Hon'ble Supreme Court of India in AIR 1981 (SC) 1653 wherein their Lordships have observed, 'as far as possible the anxiety and endeavour of the Court of 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." 29. So far so good, on the facts and in the circumstances 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 under s. 80U of the act by the ITO by invoking s. 154 of the Act was on facts and in law legal and tenable but subsequent withdrawal by invoking s. 154 of the Act was not warranted either on facts or in law, since it was not only a controversial issue qua the subsequent invoking of s. 154 of the Act, but also not in accordance with law. 30. As regards the brushi ..... X X X X Extracts X X X X X X X X Extracts X X X X
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