9911796707
TMI Blog1989 (1) TMI 167X X X X Extracts X X X X X X X X Extracts X X X X ..... (Del)." (2) "AAC has erred in holding that on the facts and circumstances of the case, the ITO was wrong in rectifying the order as no opportunity had been given to the assessee in accordance with the provisions of s. 154." (3) "AAC has erred in holding that the ITO had not mentioned in the order anything about charging of interest under s. 139(8) in spite of the fact that he ordered to charge penal interest?" 2. We have heard the learned Departmental Representative and the learned counsel for the assessee and have perused the material placed before us. The order passed by the ITO reads as under: "It is observed from the records that the Income-tax return of the firm was filed on5th July, 1983late by 24 months. As such the interest ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f hearing was not given to the assessee is against the patent facts of the case. He also contended that a mistake in not levying the interest under s. 139(8) was a mistake apparent from record and could be rectified under s. 154. On the other hand the learned counsel for the assessee contended that after the impugned order was passed by the learned AAC the ITO passed a fresh order rectifying the same mistake. A copy of that order which is dated 7th of April, 1986 has been placed at page 22 of the Paper Book. The assessee appealed against that order and the learned AAC has again passed a similar order setting aside the order passed under s. 154 and directing the ITO to take remedial action. 3. It is now settled law that stating a wrong pro ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... pportunity for raising such a contention was not required and whatever the assessee had to say could be said either in a reply in response to notice under s. 154(3) or in a personal hearing before the ITO in pursuance to the said notice. Patently the assessee did not raise any such point before the ITO and no such point appears to have been raised even before the learned AAC. Therefore, so far as the two reasons given by the learned AAC for setting aside the order are concerned, they were both untenable and he should have decided the appeal on merits. 4. However the question arises whether any relief can be given to the Revenue in the circumstances of the present case. As already stated after the AAC passed the impugned order the ITO agai ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of the mistake. 6. Under s. 139(8) interest is chargeable on the amount of tax payable on the total income as determined on regular assessment, as reduced by the advance tax, if any paid and any tax deducted at source. Now in order to show that there was a mistake apparent from the record inasmuch as interest under s. 139(8) was required to be charged, it was the duty of the ITO to state the amount on which the interest was payable. For doing so, he should have mentioned the tax determined as payable on the total income, the tax paid in advance or deducted at source. He has done nothing of the sort. Then s. 154 authorises the ITO to amend any order with a view to rectifying any mistake apparent from the record. Therefore, if there is a mi ..... X X X X Extracts X X X X X X X X Extracts X X X X
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