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TMI Blog1988 (3) TMI 134X X X X Extracts X X X X X X X X Extracts X X X X ..... l, 1983 filed before the ITO. In the said petition, three reliefs were prayed and they are as follows:- 1. Aggregation of share income derived by the assessee in various firms. 2. Correct computation of relief under s. 80C 3. Carry-forward of the losses determined in the assessment order for asst. yr. 1979-80. It is a fact that in the return for asst. yr. I980-81, the player for carry-forward and set off of the previous years losses was not made. However, : it is also a fact that in the assessment orders dt. 30th March, 1989 relating to asst. yr. 1979-80, the ITO had computed the loss at Rs. 1,08,450 and ordered carry-forward of the loss as wall as set off from the incomes of the succeeding assessment years. The ITO while passing orde ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... poses of making out a case of mistake apparent from record, was considered by Courts differently. For instance he stated that the Mysore High Court in Ganapatht Subbaraya Hegde vs. State of Mysore (1972) 84 ITR 523 (Mys), considered in the writ petition filed concerning Mysore Agricultural IT Act, 1957, s. 31 of the said Act will enable rectification where mistake is apparent from record of the assessment for the relevant assessment year. In that case the facts are that Sri Ganapathi Subbaraya Hegde is the elder brother of one Shri Narayana Subbaraya Hegde. Both of them were separately assessee by the Agrl. IT for asst. yrs. 1964-65, 1965-66 and 1966-67. Subsequently, the ITO came into possession of information that in fact the partition be ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e Mysore Agricultural IT Act, 1957. It is not in pari materia with s. 154 of the IT Act. Further, in the said Mysore case, the ITO wanted to make use of material, available for completion of the following assessment year's assessment and sought to use it as part of the record on the basis of which he sought to find out the mistake apparent on record in the assessment of back assessment years, viz., 1964-65, 1965-66, 1966-67 whereas in the facts of this case, what all, the ITO is requested to take into consideration, is the assessment proceedings completed for asst. yr. 1979-80 in which the loss was assessed as well as order to carry-forward was also passed. Therefore, in our opinion the Mysore High Court's judgment is wrongly applied to the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... uring reliefs and in this regard the Officer should take the initiative in guiding a taxpayer where proceedings or other particulars before them indicate that some refund or relief is due to him. This attitude would, in the long run, benefit the Department for it would inspire confidence in him that he may be sure of getting a square deal from the Department. Although, therefore, the responsibility for claiming refunds and reliefs 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;" The full text of the Board Circular quoted above is found at 886 and 887 as well as ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f it is apparent from the record of assessment that the assessee was entitled to a particular relief the ITO can rectify that mistake under s. 154 although the said relief was not claimed by the assessee in the return. We respectfully agree with the view taken by the Gujarat High Court". 4. The Calcutta High Court also considered this very aspect in Indra Singh Sons Pvt. Ltd. vs. Union of India Anr. at page 503. Their Lordships of the Calcutta High Court stated the question which was posed before them, and also gave their decision thereon by following the Supreme Court's decisions. They have stated at page 503 as follows: "The first question involved in the appeal is whether the ITO could, for the purpose of assessment of one partic ..... X X X X Extracts X X X X X X X X Extracts X X X X
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