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TMI Blog1998 (9) TMI 603X X X X Extracts X X X X X X X X Extracts X X X X ..... t under section 154 of the Act claiming deduction of Rs. 1 lakh made to D. C. Shah Charitable Trust. According to the assessee, the bank summary wherein the withdrawal with regard to the donation of Rs. 1 lakh had been clearly mentioned along with donation of Rs. 1.5 lakhs was furnished to the Assessing Officer and, therefore, there was sufficient material on record in respect of the donation made to D. C. Shah Charitable Trust. The Assessing Officer rejected the rectification application on the ground that there was no mistake apparent from the record and the assessee had omitted to claim the deduction in his return and, therefore, it was not open to make the said claim under section 154 after the assessment was completed. On appeal, the Commissioner of Income-tax (Appeals) also confirmed the order of the Assessing Officer. According to the Commissioner of Incometax (Appeals), the Assessing Officer can consider the claim made in the specific column mentioned in the return of income claiming deduction under section 80G and also if all necessary details like 80G certificate are filed during the course of assessment proceedings prior to the passing of the assessment order. The Commis ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... assessee had submitted the bank summary before the Assessing Officer during the assessment proceedings wherein withdrawal in respect of the donations of Rs.1,50,000 and Rs. 1,00,000 and have been clearly shown and, accordingly, the assessee was entitled to claim the deduction of the entire amount of Rs. 2,50,000 and not only a sum of Rs. 1,50,000 and had submitted a certificate under section 80G issued by the Charity Commissioner along with the rectification application. Finally, learned counsel contended that the Revenue authorities should not take advantage of the assessee's mistakes for not granting relief otherwise allowable to him. On the other hand, the learned Departmental Representative argued that the assessee having omitted to claim relief in his return, cannot claim the same in proceedings under section 154 after the assessment was completed and that there was no material was placed on record before the Assessing Officer to grant the relief under section 80G was filed along with the return. He heavily relied on the orders of the Revenue authorities and the decision of the Supreme Court in the case of CIT v. Gurjargravures P. Ltd. [1978] 111 ITR 1. On a careful consider ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he Supreme Court in Gurjargravures P. Ltd.'s case [1978] 111 ITR 1 relied on by the Revenue authorities is distinguishable from the facts of the case. In that case, there was no material on record supporting the claim of the assessee and in those peculiar circumstances, the Supreme Court has held that there was no mistake on the part of the Assessing Officer as no claim for exemption was made nor there was any material on record supporting such a claim. In view of the above discussion, we hold that the Revenue authorities were not justified in rejecting the assessee's claim of deduction under section 80G which was otherwise allowable to him and the same should have been rectified as mistake apparent from the record. In this view of the matter, the orders of the revenue authorities are set aside and the Assessing Officer is directed to allow deduction under section 80G in respect of donation of Rs. 1,00,000 in accordance with the provisions of the Act. In the result, the assessee's appeal is allowed. M. V. R. Prasad (Accountant Member).-I have carefully perused the order of the learned Judicial Member, but I am not able to persuade myself to agree with the view expressed by her. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r claim in respect of the donation amounting to Rs. 1 lakh to D. C. Shah Charitable Trust is concerned, the mistake cannot be rectified because no claim in respect thereof was made while filing the return of income which is why it cannot be treated as mistake apparent from the record. As regards the other mistakes pointed out in the letter under refer ence, the same are rectified and a revised demand notice is being issued." The Commissioner of Income-tax (Appeals) upheld the order of the Assessing Officer. It was pleaded before the Commissioner of Income-tax (Appeals) that the assessee had filed a summary of the deposits and with drawals figuring in her bank account No. 01823 with Grindlays Bank and in this summary, there is an amount of Rs. 1,00,000 reflected as a donation. It is convenient to reproduce this summary and it is shown below : "Receipt/Payment A/c. 01823Grindlays Bank Assessment year 1992-93 Rs. Rs. April 91 National Hsg. Bank 10,00,000.00 To Opening balance 82,329.53 Canara Bank 5,05,000.00 To interest (taxable) 3,23,802.11 Jeevan Dhara 40,000.00 To interest (tax free) 14,135.00 Donation 1,00,000.00 To dividend 13,358.39 Donation 1,50,000.00 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... se the question referred to it under the provisions of section 256(1) assumed that it was apparent from the record that the assessee was entitled to the relief under section 35B. This is evident from the following remarks of the High Court (page 15) : "Learned counsel for the Department submitted before us that even otherwise the conclusion that the assessee was entitled to the relief under section 35B was not apparent from the record. We cannot examine this submission because the question referred has to be answered on the assumption that it was apparent from the record that the assessee was entitled to the relief under section 35B." In the case of West Bengal State Warehousing Corpn. v. CIT [1986] 157 ITR 149, the Calcutta High Court decided the issue in favour of the assessee because what was involved in that case was a statutory relief under section 83 of the Income-tax Act granted to warehousing corporations and it was evident from the material on the record of the Assessing Officer that the receipts for which exemption was claimed, included the warehousing receipts. The Calcutta High Court cautiously restricted the relief only for those receipts which are from warehousing. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he question of relief under section 80-I for the first time. So, the question is whether there was almost full material on record to warrant granting of relief under section 80G in respect of the said donation of Rs. 1,00,000 as claimed by the assessee in the application for rectification. Admittedly what was available with the Assessing Officer was only a summary of the bank account of the assessee with certain narrations of the transactions given by the assessee herself. There was no receipt in support of the donation. There was no certificate issued by the Commissioner that the charity in question was eligible for relief under section 80G. As can be seen from the application for rectification, reproduced hereinbefore, the receipt in support of the donation and the requisite certificate from the Commissioner were enclosed only with the application, i.e., they were filed only after the assessment was completed. The extent of the material that has to be on the file of the Assessing Officer to enable him to consider a new claim, i.e., a claim made after the assessment is completed depends upon the nature of the issue. In respect of a claim for deduction under section 80G, to my mind ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... would mean that the assessee could claim a deduction under section 80G even in respect of this donation of Rs. 9,500 through another application for rectification, if the necessary conditions are satisfied. In other words, the assessee could come forward with fresh claims at multiple stages. Proceedings under section 154 are an opportunity to rectify the errors in the orders of the Revenue. To my mind, this section does not bestow an opportunity on the assessee to make up for his lapses. If the conditions laid down by the jurisdictional High Court, in the case of Western Rolling Mills (P.) Ltd. [1985] 156 ITR 54 (Bom) are not observed, it would throw an unwarranted and undue burden on the Revenue by way of repeated claims for deductions and exemptions from the assessees, who were not careful enough to make their claims in their returns. Even the Board's circular on which learned counsel for the assessee relied, which was considered in the case of Chokshi Metal Refinery v. CIT [1977] 107 ITR 63 (Guj) requires the Assessing Officer to allow any relief, though not claimed, only if the relevant particulars were available on his record. Admittedly, the record includes a statement accomp ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e assessee. Before I close the matter, I may mention that learned counsel for the assessee has pleaded that the assessee was of a humanitarian nature and so, too technical a view of her claim should not be taken. The question is whether the view taken is valid, i.e., whether it conforms to the ratio of the decision of the jurisdictional High Court in the case of Western Rolling Mills (P.) Ltd. [1985] 156 ITR 54 (Bom). To derogate the view as technical or too technical can be avoiding the facts and the ratio of the binding decisions. The provisions of section 264 are meant only for relieving hardships in deserving cases and it is needless to mention that the assessee will be well advised to approach the Commissioner of Income-tax under this section. If the Tribunal decides an issue going beyond the limits laid down by the jurisdictional High Court in the case of Western Rolling Mills (P.) Ltd. [1985] 156 ITR 54 (Bom) on extraneous considerations such as the charitable instincts of the assessee, to my mind, it would thrown open, as already mentioned, the flood gates of unending claims before the Assessing Officers after the assessments are made in other cases. In effect, the assessm ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nd the Revenue. The relevant facts, briefly stated, are that the assessee had filed the return for the assessment year 1992-93 on October 28, 1992, declaring income of Rs. 9,87,065. The assessee had claimed a deduction under sec tion 80G in respect of the donation of Rs. 1,50,000. The donation had been made to Firozegarh Charitable Trust. The Assessing Officer allowed the claim of the assessee. The assessment order was passed on March 31, 1993. Subsequently, on April 29, 1993, the assessee filed an application under section 154 claiming certain mistakes in the assessment order. In this very application, the assessee pointed out to the Assessing Officer that the assessee had made the following donations during the previous year relevant to the assessment year 1992-93 : Date Name of the trust Amount (Rs.) 26-3-1992 Pherozgarh Charitable Trust 1,50,000 20-3-1992 D. C. Shah Charitable Trust 1,00,000 It was pointed out to the Assessing Officer that the withdrawal of Rs.2,50,000 had been made from Grindlays Bank Account No. 01823 and is evidenced from the details of withdrawals furnished to the Assessing Officer. It was pointed out that the claim in regard to a donation of Rs ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... vures (P.) Ltd. [1978] 111 ITR 1 (SC) ; in support of the contention that the appellate authority has jurisdiction to entertain claim for deduction for the first time. Reliance was also placed on the decision of the Madhya Pradesh High Court in the case of CIT v. K. N. Oil Industries [1983] 142 ITR 13 in support of the contention that relief under section 35B could be made before the Commissioner of Income-tax (Appeals) even though such a claim was not made in assessment proceedings. Reliance was also placed on the decision of the Calcutta High Court in the case of West Bengal State Warehousing Corporation v. CIT [1986] 157 ITR 149 in which case the claim for exemption of warehousing receipts of the assessee was allowed on an application for rectification though such a claim was not made during the assessment proceedings. Learned counsel for the assessee further contended that the Department should have a human face and allow the deduction to an old lady who is suffering from incurable disease. It was contended that the Assessing Officer had not to investigate the facts. The fact that the assessee had made a donation was available on record and the certificate required under sect ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ejected the application on the ground that there is no mistake in the assessment order in so far as no claim had been made by the assessee in the return of income. However, certain other mistakes pointed out in the application, with which I am not concerned, were rectified. The issue raised in this appeal is as to whether the Assessing Officer was justified in denying the benefit of deduction under section 80G to the assessee. As already pointed out, the assessee had not made any claim in the return of income and had not filed any appeal or revision under section 264 against the assessment. I am reminded of the observations of their Lordships of the Supreme Court in the case of Parashuram Pottery Works Co. Ltd. v. ITO [1977] 106 ITR 1. Their Lordships elucidating on rule of finality of an assessment, laid down as under (page 10) : "It has been said that the taxes are the price that we pay for civilization. If so, it is essential that those who are entrusted with the task of calculating and realising that price should familiarise themselves with the relevant provisions and become well-versed with the law on the subject. Any remissness on their part can only be at the cost of the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ITO v. Volkart Bros. [1971] 82 ITR 50. Their Lordships have held as under (headnote) : "A mistake apparent on 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 may be conceivably two opinions. A decision on a debatable point of law is not a mistake apparent from the record." When the scope of section 154 is so limited, how can a deduction which possibly could not be allowed even in appellate proceedings be allowed by considering it as a mistake apparent from record ? It may be pertinent to mention that the scope of appeal against the assessment is wide and broader than the scope under section 154. However, even in an appeal the powers of the appellate authority are not unlimited. In the case of Gurjargravures (P.) Ltd. [1978] 111 ITR 1 (SC), one of the grounds of the appeal raised by the assessee in an appeal before the Appellate Assistant Commissioner was that the Income-tax Officer had erred in not giving the assessee the benefit of section 84 of the Income-tax Act, 1961. No such claim had been made before the Income-tax Officer when he completed the assessment, nor was ther ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... at are available to him and the records. As has been pointed out above, there was nothing on record on the basis of which the assessee could be granted deduction in respect of the donation of Rs. 1,00,000 under section 80G. In this case it is not as if the assessee was not aware of the benefits available under section 80G as a deduction in regard to the donation of Rs. 1,50,000 had been claimed and was allowed in accordance with law. The reasons for not making the claim and not giving requisite information, as already pointed out, are not forthcoming from the records or from the assessee. In such circumstances, the Assessing Officer was justified, in my view, in rejecting the application of the assessee under section 154, by holding that there was no mistake apparent from record that could be rectified under the said section. The decisions cited on behalf of the assessee are distinguishable on facts. I agree with the learned Accountant Member that those decisions are inapplicable to the facts of this case. As already pointed out, the principles applicable in regard to the appellate proceedings are not necessarily applicable in regard to the proceedings under section 154. Consideri ..... 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