9911796707
TMI Blog2003 (1) TMI 27X X X X Extracts X X X X X X X X Extracts X X X X ..... and in the circumstances of the case, the Tribunal is justified in rejecting the method of computing the income followed by the assessee? (3) Whether, on the facts and in the circumstances of the case, the Tribunal was right in declining to grant exemption to the assessee-trust on a completely new ground made out suo motu without affording an opportunity to the assessee to have its say on the said new ground?" The facts of all the consolidated references in brief are as follows: The Prajatantra Prachar Samity, Cuttack (hereinafter referred to as "the assessee"), a registered society, is a public charitable trust registered as such with the Commissioner of Income-tax, Orissa, under section 12A of the Income-tax Act, 1961 (hereinafter r ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... under section 143(3) of the Act. Against the said order of assessment, the assessee filed Income-tax Appeal No. 11/ORS/ORA of 1988-89 before the Commissioner of Income-tax (Appeals), Orissa, Cuttack, who by order dated November 28, 1988, dismissed the appeal. Being dissatisfied with the order of dismissal, it filed appeal before the Income-tax (Appellate) Tribunal, Cuttack Bench, Cuttack, which by order dated January 19, 1990, dismissed the appeal. Thereafter, the assessee made an application under section 254(2) of the Act for rectification of the order dated January 19, 1990, and the Tribunal by its order dated December 13, 1990, held that "both legal principles and judicial wisdom demand that the entire order should be recalled and the a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... today, the Tribunal shall refer the questions. arising therein for consideration of the High Court. The above course is adopted in the particular facts of this case and with a view to overcome the several technical objections put forward by both parties. We make it clear that we intend no reflection upon the merits of the case of either party. All the questions which arise from the orders of the Tribunal aforesaid shall be open in such reference which may be heard together." The litigation was going on a straight track. After the assessee's appeal was dismissed by the Tribunal, it as an ordinary course could have moved under section 256 of the Act for reference to this court. Instead, it opted for a short cut and applied for rectificat ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... in our opinion the High Court was not justified in going into that question. In Satyanarayan Laxminarayan Hegde v. Mallikarjun Bhavanappa Tirumale, AIR 1960 SC 137; [1960] 1 SCR 890, 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 Sidhramappa Andannappa Manvi v. CIT [1952] 21 ITR 333 (Bom); AIR 1952 Bom 287. The power of the officers mentioned in section 154 of the Income-tax Act, 1961, to correc ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... any mistake apparent from the record if such mistake is brought to its notice...On the other hand, the Tribunal has gone into the merits of the appeal again and found that this order is sound even on the basis of the materials sought to be relied upon. This, in my opinion, the Tribunal could not do. The Tribunal has got no power to review an earlier order or rehear a matter afresh. Its only duty on such rectification application is to ascertain whether there was any mistake apparent from the record or not..." This court in CIT v. Jagabandhu Roul [1984] 145 ITR 153 after taking notice of an earlier decision of this court in the case of CIT v. Dhadi Sahu [1976] 105 ITR 56 and the decisions of the Bombay, Madras, Madhya Pradesh and Calcutta ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... dated May 10, 1991, besides the above mistake (applicability or non-applicability of section 11(4A)), the Tribunal has given an additional ground of apparent mistake. That "mistake", according to the Tribunal is--the assessee for the first year of assessment, i.e., for the disputed year 1985-86, having adopted a hybrid system of accounting, the question of changing the method of accounting to adopt dubious way of avoiding tax does not arise. Keeping in view the decisions referred to above and the finding recorded by the Tribunal in its orders dated December 13, 1990, and May 10, 1991, we have no hesitation to hold that the order of the Tribunal dated January 19, 1990, dismissing the assessee's appeal suffered from the mistake apparent fr ..... X X X X Extracts X X X X X X X X Extracts X X X X
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