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TMI Blog2003 (9) TMI 10X X X X Extracts X X X X X X X X Extracts X X X X ..... ire lottery income. The effect of the finding of the Tribunal that the legal issue is a debatable one and the assessment cannot be rectified is that the original intimation which is against the assessee stands. We also find that for arriving at the conclusion that the legal issue is a debatable one the Tribunal has not cared to consider the provisions of section 115BB and the CBDT Circular No. 461, dated July 9,1986 - Tribunal committed a serious error in holding that the assessee is entitled to succeed - we decline to answer the question - - - - - Dated:- 3-9-2003 - Judge(s) : G. SIVARAJAN., J. M. JAMES. JUDGMENT The judgment of the court was delivered by J.M. James J. -The Income-tax Appellate Tribunal, Cochin Bench, in R.A. No. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r was challenged before the Deputy Commissioner of Income-tax (Appeals), who agreed with the findings of the Assessing Officer, and dismissed the appeal. The same was challenged before the Income-tax Appellate Tribunal, Cochin Bench, as I.T.A. No. 698/Coch of 1996. As per the order dated September 4, 1997, the Tribunal allowed the appeal, and directed the Assessing Officer to accept the income returned by the assessee. It was thereafter, at the instance of the Department, this reference, stated above, was made. Heard Sri P.K.R. Menon, learned senior counsel (Government of India) Taxes, and Sri K.R. Syam Kumar, learned counsel appearing for the respondent. The main contention of the Department is that section 115BB of the Act, being a sp ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... : "115BB. Tax on winnings from lotteries, crossword puzzles, races including horse races, card games and other games of any sort or gambling or betting of any form or nature whatsoever. -Where the total income of an assessee includes income by way of winnings from any lottery or crossword puzzle or race including horse races (not being income from the activity of owning and maintaining race horses) or card game and other game of any sort or from gambling or betting of any form or nature whatsoever, the income-tax payable shall be the aggregate of- (i) the amount of income-tax calculated on income by way of winnings from such lottery or crossword puzzle or race including horse race or card game and other game of any sort or from gambling ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... urn showing a total income of Rs. 22,500 and claimed exemption. The assessing authority issued an intimation by applying the provisions of section 115BB of the Act and demanded a sum of Rs. 3,472 after adjusting the sum of Rs. 7,000 deducted at source. The assessee did not seek for rectification. The Assessing Officer, by invoking the provisions of section 154, rectified the intimation by deducting a sum of Rs. 5,000 under section 10(3) of the Act from the lottery income. It is against this, the assessee filed the appeal. Thus, the main question which arose was as to whether the invocation of section 154 of the Act was justified. Of course the omission to deduct a sum of Rs. 5,000 under section 10(3) of the Act is an error apparent from the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hether the issue is a debatable one or not will depend on an understanding of section 2, the provisions of section 115BB and the provisions of the Schedule to the respective Finance Acts, certainly with reference to the circular also. Since the Tribunal has not considered the above, we are of the view that the Tribunal committed a serious error in holding that the assessee is entitled to succeed. We accordingly set aside the order of the Tribunal and remit the matter to the Tribunal for consideration of the matter afresh in accordance with law and in the light of the observations made hereinabove. In the circumstances, we decline to answer the questions referred to this court for decision. A copy of this judgment under the seal of this co ..... X X X X Extracts X X X X X X X X Extracts X X X X
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