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TMI Blog1961 (8) TMI 26X X X X Extracts X X X X X X X X Extracts X X X X ..... come-tax Officer of date November 30, 1954. In the total tax levied on the petitioner, an additional incometax was charged in respect of dividends distributed in excess of the specified limit mentioned in the Finance Act, 1950. This additional income-tax is hereinafter, for brevity's sake, referred to as "excess dividend tax." The matter was ultimately decided by the Income-tax Tribunal by its order dated July 27, 1955. A consequential order was then made by the Income-tax Officer on November 11, 1956, and the net result of the order was that the tax amounting to Rs. 1,58,520 was levied on the petitioner by way of excess dividend tax under the second clause of the proviso to paragraph B of Part I of the First Schedule of the Finance Act, 19 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ched this court by this petition praying for the aforesaid reliefs. Mr. Palkhivala, learned counsel for the petitioner, contends that both the income-tax authorities were in error in holding that the mistake pointed out by the petitioner was not a mistake apparent from the record within the meaning of section 35 of the Act. No process of elucidation, argument or debate was required to establish the mistake. The highest court of the land had declared the levy to be bad, and the only thing that had remained was to rectify the mistake and give effect to the decision of the Supreme Court. The petitioner had a right under section 35 of the Act to ask the department to rectify the mistake within four years from the date of the assessment order. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ion has been filed after an inordinate delay, and, therefore, it should be dismissed in limine. It is his argument that the application made by the Income-tax Officer on April 2, 1958. The revision application made to the Commissioner was dismissed. Thus, the only operative order is the order of the Income-tax Officer, and that was made in April, 1958. This application was filed in this court in January, 1961, nearly after three years; the delay is inordinate. It is not possible for us to accept this contention of Mr. Joshi. It is indeed true that the order made by the Commissioner in revision being one of dismissal, the perative order is the order of the Income-tax Officer, but that does not mean that the petitioner cannot call in aid the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... take. The Supreme Court declared that the levy of the tax invalid. The levy was therefore good on November 30, 1954, the date on which the Income-tax Officer made the assessment order. It is only thereafter that the Supreme Court declared that the levy of the tax was invalid. The mistake which is discovered as a result of a subsequent judicial pronouncement cannot be a mistake apparent from the record. In our opinion, the ratio of the decision of their Lordships of the Supreme Court in Venkatachalam v. Bombay Dyeing and Manufacturing Co. Ltd. is a complete answer to the contention raised. The facts of this case were that the assessee was given credit for Rs. 50,603-15-0 being interest at 2% on tax paid in advance under section 18A (5) of th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... this court issued a writ of Prohibition against the department realising from the assessee the amount of Rs. 29,446. The department field an appeal before the Supreme Court against the decision of this court, and the decision of this court was reversed. The ratio of this decision is well summarised in the placitum, which is in the following terms : "The effect of the provision that section 13 of the Amendment Act shall be deemed to have come into force on April 1, 1952, was that the amendment to section 18A must be deemed to have been included in the principal Act as from April 1, 1952, for all purposes, and therefore the proviso must be deemed to be part of section 18A on the date of the passing of the assessment order; consequently the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ause there is the binding Supreme Court decision, clearly bringing out that mistake. The mistake, therefore, in our opinion, is a mistake apparent from the record, within the meaning of section 35 of the Act. The authorities concerned, i.e., the respondents, were therefore clearly in error in not rectifying that mistake under section 35 of the Act. In the result, the application is allowed. The order of the Income-tax Officer of date April 2, 1958, rejecting the petitioner's application under section 35 of the Act and the order of the Commissioner dated December 15, 1960, dismissing the petitioner's revision application, are hereby quashed, and the Income-tax Officer, Companies Circle I (3), Bombay, is directed to rectify the mistake unde ..... X X X X Extracts X X X X X X X X Extracts X X X X
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