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TMI Blog2014 (12) TMI 980X X X X Extracts X X X X X X X X Extracts X X X X ..... aw, which would not be permissible. If one has regard to the applicable law (applicable by virtue of a retrospective amendment), there is clearly an over-assessment of the assessee - assessee has been charged more tax than what is due and payable by him - The Commissioner is not only entitled but is duty bound to correct the assessment in revision – thus, the order is set aside and the revenue is directed to consider the assessee's claim of deduction u/s 80 HHC – Decided in favour of assessee. - Writ Petition No. 1123 of 2007 - - - Dated:- 22-12-2014 - M. S. Sanklecha And S. C. Gupte,JJ. For the Petitioner : Mr A. R. Singh For the Respondent : Mr Suresh Kumar JUDGMENT (Per S.C. Gupte, J.) : The Writ Petition challenges an order dated 23 February 2007 passed by the Commissioner of Income Tax under Section 264 of the Income Tax Act, 1961 ( the Act ). The Petition involves a question, whether the Commissioner, whilst revising an order of the assessing officer under Section 264, could take into account a retrospective amendment made after the order of the assessing officer. The short facts of the case may be stated thus: 2 The Petitioner filed his ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the revising or appellate authority when it considers the revision or appeal, as the case may be. Learned Counsel relies on judgments of our Court in CIT Vs Mrs Kamla S. Asrani Anr(1991) 189 ITR 359 (Bom) and Consolidated Pneumatic Tool Co. (India) Ltd. Vs CIT (1994) 209 ITR 277 (Bom) as also CBDT Circular Nos.725 dated 16.10.1995 and 14(XL-35) of 1995, C.No.13 (207)-II/50 dated 11.4.1955. 4 Mr Suresh Kumar, learned Counsel for the Revenue, opposes the Petition. Learned Counsel contends that whilst it may be permissible to the assessing officer under Section 154 to amend an assessment order passed by him, it is not permissible to the revisional authority to do so under 264 of the Act. It is submitted that the revisional authority has simply to see if there is any error apparent on the record; and that as of the date of the assessment order, there is no error apparent on the face of the record in the order. Learned Counsel for the revenue submits that the record must be reckoned as at the date of the original order. He distinguishes between the Commissioner's powers under Section 263 and 264 in this behalf and submits that whereas in Section 263, it is specifically provide ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... particular section itself, and courts are not justified in imposing additional limitations on the exercise of that power on hypothetical considerations of policy or the extraordinary nature of the power. 6 That is exactly what is proposed by the Revenue in the present case. It is submitted that the power of revision being restricted to examining the correctness or validity of the order impugned, the exercise must be restricted to the law considered by the assessing officer on the date he passed the order. In other words, the Revenue would have a restriction placed on the power on considerations of the nature of that power ex hypothesi. That is clearly impermissible. Besides, even if one has regard to the nature of the power, namely, to correct an error apparent on the record, the law being retrospectively amended and made applicable to the assessment year to which the impugned order pertains, the order, when it comes before the revising authority, does exhibit a clear error apparent on the face of the record. It is in contravention of the law on the subject. 7 The Revenue, however, contends that the 'record' within the meaning of Section 264 is the record as on the d ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... lem raised in the reference before the High Court normally is not excluded merely because at the date when the Tribunal decided the question, the relevant law was not or could not be brought to its notice. There is nothing so peculiar in the nature of a reference under the Sales Tax Act that in deciding it the High Court is compelled to apply the law which, since the date of the reference made by the Tribunal, has been superseded by the Legislature. There are similar observations of the Calcutta High Court in Union of India v. Addl. Member, Board of Revenue, [1975] 36 STC 61 and of the Punjab and Haryana High Court in Sheo Karan Dass Bhoj Raj v. State of Haryana [1974] 34 STC 94 [FB]. We do not see how a different view can be taken while deciding an application under section 256(2). The Andhra Pradesh High Court in Addl. CIT v. M. J. Devda [1977] 109 ITR 484, felt that, in deciding an application under section 256(2), the High Court could decide the correctness or otherwise of the Tribunal's decision only in the light of the law which was in force when the Tribunal rendered the decision. In our view, this is not the correct way of reading section 256(2). When a law is ame ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... is to secure the revenue for the development of the Country and not to charge the assessee more tax than that which is due and payable by the assessee. It is in aforesaid circumstances that as far back as in April 11, 1955, the Central Board of Direct Tax had issued a circular directing Assessing Officer not to take advantage of assessee's ignorance and/or mistake. The relevant portion of the above circular is as under: 3. Officers of the Department must not take advantage of ignorance of an assessee as to his rights. It is one of their duties to assist a taxpayer in every reasonable way, particularly in the matter of claiming and securing reliefs and in this regard the officers 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X
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