9911796707
TMI Blog2016 (8) TMI 649X X X X Extracts X X X X X X X X Extracts X X X X ..... relating to A.Y. 1992-93. The basis of the impugned notice is the decision of this Court in the petitioner's own case in Income Tax Appeal No.131 of 2001 dated 2nd July, 2001 holding that the benefit of Section 80HHC of the Act is not available to the petitioner for the Assessment Year 1996-97. 2. This petition was admitted on 27th November, 2001 and the respondent Revenue were restrained from proceeding further with the impugned Notice dated 26th September, 2001. 3. The brief relevant facts are as under : (a) On 30th December, 1992, the petitioner filed its Return of Income for the A.Y. 1992-93. In its return, the petitioner inter alia claimed deduction of Rs. 1.46 crores under Section 80HHC of the Act. On 31st March, 1995, the ass ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed 23rd August, 1996 annexed a ExhibitP to the petition was not the order dated 23rd August, 1996 passed under Section 154 of the Act. This the petitioner pointed out was a mistake and apologized for annexing the incorrect document. The copy of order dated 23rd August, 1996 is taken on record and marked "X". (d) On 5th October, 1998, the Assessing Officer consequent to the petitioner pointing out non-granting of interest under Section 244A of the Act, rectified its order dated 23rd August, 1996 under Section 154 of the Act. Thus determining the interest payable under Section 244A of the Act. The order dated 5th October, 1998 reads as under : " In this case order u/s 154 was passed on 06.03.1996 determining Taxable Income at Rs. 2,16,62,9 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Appeal No. 131 of 2001 from the order of the Income Tax Appellate Tribunal for A.Y. 1996-97. In its above order dated 2nd July, 2001, it held that the petitioner was not entitled to deduction under Section 80HHC of the Act for A.Y. 1996-97. Being aggrieved by the order dated 2nd July, 2001 of this Court, the petitioner carried the issue in appeal to the Supreme Court, being SLP (C) No. 16293 of 2000. The Supreme Court after hearing the petitioner directed its Registry to issue notice to the respondent Revenue on the petitioner's above petition. (f) It is consequent to the order of this Court dated 2nd July, 2001 in relation to A.Y. 1996-97 that the Assessing Officer on 26th September, 2001 issued the impugned notice. By the impugned no ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... as being without jurisdiction and as pointed out above, admitted on 27th November, 2001. 4. Mr. Irani, learned Counsel appearing in support of the petition submits that the impugned Notice dated 26th September, 2001 is without jurisdiction submits as under : (a) The impugned Notice is barred by limitation as the issue of Section 80HHC of the Act was a subject of consideration in the order of Assessment dated 31st March, 1995. It was not a subject matter of consideration of the order dated 5th October, 1998 passed under Section 154 of the Act which the impugned notice seeks to rectify. Thus, the impugned notice having been issued beyond a period of four years from the order dated 31st March, 1995 which dealt with the issue of Section 80HHC ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s even if the order dated 5th October, 1998 did not deal with Section 80HHC of the Act, it modifies the Assessment Order dated 31st March, 1995. Therefore, Assessment Order stood rectified on 5th October, 1998 and the original order stood merged in it i.e. the order dated 5th October, 1998. Therefore, the impugned notice is within four years from 5th October, 1998 and is within jurisdiction. In support, reliance is placed upon the decision of the Apex Court in Hind Wires Ltd. Vs. Commissioner of Income Tax, 212 ITR 639. 6. It is a settled position in law that the power under Section 154 of the Act can be exercised to amend any order passed by an Authority under the Act, upon satisfaction of the following conditions : (a) Mistake must be i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... and also that the issue is debatable. Therefore, before addressing the first issue of limitation, we shall consider the other two issues raised by the petitioner. 9. In the present facts, we find that the issue of Section 80HHC of the Act was a subject matter for consideration by the Assessing Officer while passing an order dated 31st March, 1995 relating to A.Y. 1992-93. Thereafter, in an appeal filed by the petitioner, the CIT(A) in its order dated 5th October, 1995 also dealt with the issue of Section 80HHC of the Act while allowing the appeal for A.Y. 1992-93 of the petitioner. The order of the CIT(A) has been accepted by the Revenue in respect of the A.Y. 1992-93, as no further appeal from the order of CIT(A) was filed. Thus, the iss ..... X X X X Extracts X X X X X X X X Extracts X X X X
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