9911796707
TMI Blog2004 (10) TMI 36X X X X Extracts X X X X X X X X Extracts X X X X ..... e learned Deputy Commissioner of Income-tax (Appeals) cancelling the Assessing Officer's order under section 154 withdrawing investment allowance in respect of drilling machines even though the Assessing Officer's action in rejecting such claim of investment allowance was in conformity with the ratio of the decision of the hon'ble Supreme Court in the case of CIT v. N.C. Budharaja and Co. [1993] 204 ITR 412? 2. Whether, on the facts and in the circumstances of the case, the hon'ble Income-tax Appellate Tribunal was justified in upholding cancellation of the rectification order passed by the Assessing Officer on October 19, 1992, despite the decision of the hon'ble Supreme Court in the case of N.C. Budharaja and Co. [1993] 204 ITR 412 on th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Commissioner of Income-tax (Appeals) by order dated September 3, 1993 (annexure B) allowed the appeal and set aside the order passed by the Assessing Officer. The Revenue then filed appeal to the Tribunal. By order dated November 6, 1997 (annexure C), the Tribunal dismissed the appeal filed by the Revenue. However, on a reference prayed by the Revenue, the Tribunal acceded to the prayer made by the Revenue and made the reference to this court for answering the two questions framed supra. This is how the matter has come to this court to answer the aforementioned two questions of law. Heard Shri R.L. Jain, learned counsel for the applicant, and Shri S.K. Jain, learned counsel for non-applicant. Learned counsel for the Revenue has contended ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ranted relief to the assessee, the issue inflation to claiming of investment allowance on drilling activity was a debatable one. In substance, therefore, the submission of learned counsel for the assessee was that both the Deputy Commissioner of Income-tax (Appeals) and the Tribunal were justified in holding that section 154 of the Act could not have been resorted to in this case. Having heard learned counsel for the parties and having perused the record of the case, we are inclined to answer the reference against the Revenue and in favour of the assessee. As taken note of supra, the Assessing Officer passed an assessment order on March 31, 1989, granting benefit of investment allowance to an assessee. This benefit was withdrawn by taking ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ground of an error being apparent on the face of the record. In this view of the matter, the Assessing Officer had no jurisdiction to invoke section 154 ibid and rectify the order of assessment thereby withdrawing the benefit granted to the assessee. In other words, there did not arise any cause of action as on October 19, 1992, to seek rectification of the order and the issue being debatable on the date of claiming benefit, the assessee could claim and the Assessing Officer could either grant or decline it. In our view, the decision relied on by learned counsel for the assessee does support the stand taken by an assessee. Indeed, in some cases, i.e., Geo Miller and Co. Ltd. v. Deputy CIT [2003] 262 ITR 237 (Cal), the Assessing Officer ma ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
