9911796707
TMI Blog2001 (4) TMI 187X X X X Extracts X X X X X X X X Extracts X X X X ..... section 143(3) dated 30-12-1991 Rs. 7,43,110 Less: Firm tax... Rs. 1,77,629 ------------ Income to be allocated amongst the partners Rs. 5,65,481 ------------ Allocation Name of the partner Share Profit 1. Mr. Mohanlal Gupta, Indl. 20% 1,13,096 2. Smt. Shakuntala Bai, Indl. 10% 56,548 3. Mr. Prakash Chand Gupta, HUF 20% 1,13,096 4. Mr. Pramod Kumar Gupta, Indl. 20% 1,13,096 5. Mr. Kailash Chand Gupta, HUF 20% 1,13,097 6. Mr. Anil Kumar Gupta, HUF 10% 56,548 ------------ Rs. 5,65,481 ------------ ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rectified by passing an Order under section 154 of the Act. I concur with the contention of the appellant's Learned Authorised Representative that the Assessment Order for the assessment year 1990-91 does not contain any obvious or apparent mistake which can be corrected under section 154 of the Act. Further, the question whether an order under section 158 can be construed as an extension or part of the Assessment Order passed under section 143(3) of the Act and whether it is subject to the limitation as specified for completion of an assessment are highly debatable issues which cannot be brought within the realm of rectification under the provisions of Section 154 of the Act. Therefore, having regard to all the facts and circumstances of the case, I hold that the order passed under section 154 dated 17-11-1995 allocating the firm's income among the partners is erroneous in law and has to be cancelled.' 3. Before us, the learned Departmental Representative argued that the allocation of the income of the firm among the partners is mandatory under section 158 of the Act, and the omission to have effected such an allocation is a mistake apparent from record, which could be rectified ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... made out by the learned Departmental Representative. Considering the matter from either of the two angles mentioned by him, we are of the. view that the order effecting the allocation of income of the firm among the partners deserves to be upheld. It has been the departmental practice to effect the allocation of the income among the partners in the assessment order passed under section 143(3) on the registered firm. If, going by this practice, we examine the matter, the omission on the part of the Assessing officer to have effected the allocation of income among the partners !Was a clear omission, which could be rectified as a mistake apparent from record under section 154 within four years from the passing of the assessment order. That is exactly what has been done by the Assessing Officer in the present case, by the impugned order under section 154. Consequently, we have to find that the said order under section 154 deserves to be upheld. 6. If we ignore the departmental practice and proceed to examine the matter, going entirely by the language of the Act, a separate order allocating the income of the firm among the partners in their profit sharing ratio, has to be passed in te ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the one of Apex Court in the case of Hukumchand Mills v. State of M.P. 53 ITR 583 (sic) in support of the above principles. Simply because the Assessing Officer called it an order under section 154, and has done the allocation of firm's income among the partners as contemplated in section 158 of the act, in an order under section 154, proceeding on the departmental practice that it should have formed part of the assessment order, and omission to do so constituted a mistake rectifiable under section 154, it does not mean that the order cannot be related to section 158 under which the Assessing Officer is empowered and called upon to make such an allocation. 9. It may also be mentioned that while section 154 is attracted only in respect of apparent mistakes, which do not involve any elaborate argument in view of the decision of the Apex Court in the case of T.S. Balaram, ITO v. Volkart Bros. [1971] 82 ITR 50, mere complexity of a problem or the fact that some genuine argument is necessary to discover the mistake are not sufficient to oust the jurisdiction of the taxing authority to rectify such a mistake. For this proposition, reference may be made to the decision of Madras High Co ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
