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TMI Blog2015 (10) TMI 320X X X X Extracts X X X X X X X X Extracts X X X X ..... me earned by way of interest would form part of total income so as to allow the assessee to seek set-off is an issue which will have to be gone into in detail and mere declaration in the return of income by assessee would not alter its status and as such it cannot be held that an error had occurred in the assessment order so as to enable the Assessing Officer to invoke section 154 of the Act for rectification. In that view of the matter we are of the view that substantial question of law is required to be answered in the negative i.e., in favour of assessee and against the revenue. - ITA No. 416/2009 - - - Dated:- 3-7-2015 - Vineet Saran And Aravind Kumar, JJ. For the Petitioner : Sri A Shankar And Sri M Lava, Advs For the Respondent : Sri K V Aravind, Adv JUDGMENT Assessee is in appeal questioning the correctness of the order passed by Income Tax Appellate Tribunal (ITAT), Bangalore Bench in ITA No.60/BANG/2009. 2. Facts in brief which has led to the filing of this appeal are as under: Return of income came to be filed for the assessment year 2004-05 claiming a loss of ₹ 24,23,760/- and the jurisdictional Assessing Officer after issuing notice un ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 154 of the Act are applicable to the facts and circumstances of the case? (ii) Whether the Tribunal erred in law in holding that the appellant was not entitled to set off of the carry forward business loss on the facts of the appellant s case? 4. We have heard the arguments of Sri.A.Shankar, learned counsel appearing for appellant-assessee and Sri.K.V.Aravind, learned counsel appearing for the respondent-revenue. 5. It is the contention of Sri.A.Shankar, learned counsel appearing for the assessee that jurisdictional Assessing Officer could not have invoked section 154 of the Act since there was no error apparent on the record of the assessment order dated 30.11.2006 and if two (2) views are possible and one view has been adopted by the Assessing Officer, rectification proceedings cannot be initiated to take a different view and as such relies on the decision of Apex Court in T.S.Balaram, Income Tax Officer, Company Circle IV, Bombay Vs Volkart Brothers and others reported in 1971 (82) ITR 50 contending it is squarely applicable to the facts on hand whereunder it has been held if issue involves long drawn process of reasoning same cannot be construed as ground to hold t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... non Impex (P) Ltd 7. After having heard the learned Advocates appearing for the parties and on perusal of the case papers we find from the records that undisputedly the assessment order which came to be passed on 30.11.2006 for the assessment year 2004-05 was under section 143(3) whereunder the assessee had claimed income from other sources at ₹ 20,41,899/- and had also sought for business loss to the tune of ₹ 24,23,760/- being set off against total income of ₹ 27,07,925/- which comprised Income from Other Sources , Income from House Property apart from Income from Business . This came to be accepted by the Assessing Officer and accordingly assessment order came to be framed on 30.11.2006. It is also not in dispute that assessee is carrying on the business of money lending and had deposited money in Fixed Deposits, NSCs, Banks and had earned interest and in the return of income filed had shown the interest income earned under the head Income from other sources . As to whether the interest earned on the Fixed Deposits, NSCs is an income which can be set off under section 72 would arise for examination by us while answering substantial question of law N ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... respondent is not free from doubt. Therefore, the Income-tax Officer was not justified in thinking that on that question there can be no two opinions. It was not open to the Income-tax Officer to go into the true scope of the relevant provisions of the Act in a proceeding under section 154 of the Income-tax Act, 1961. 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 conceivably be two opinions. As seen earlier, the High Court of Bombay opined that the original assessments were in accordance with law though in our opinion the High Court was not justified in going into that question. In Satyanarayan Laxminarayan Hegde Vs Mallikarjun Bhavanappa Tirumale, this court while spelling out the scope of the power of a High Court under Article 226 of the Constitution ruled that an error which has to be established by a long drawn process of reasoning on points where there may conceivably be two opinions cannot be said to be an error apparent on the face of the record. A decision on a debatable point of law is not a mistake apparent from the record - see Sidhramap ..... X X X X Extracts X X X X X X X X Extracts X X X X
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