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TMI Blog2001 (3) TMI 78X X X X Extracts X X X X X X X X Extracts X X X X ..... t large and thereby directed rebate of 30 percent instead of 20 percent. allowed initially by the Assessing Officer. In terms of the direction of the appellate authority the Assessing Officer by his order dated April 19, 1972, revised his own order by granting rebate at 30 percent. instead of 20 per cent. The order of the appellate authority was impugned by the Revenue before the Tribunal wherein the Tribunal upheld the order of the appellate authority by its order dated September 21, 1973. The reference application made by the Revenue on the said score was also dismissed for non-prosecution as the Department did not wish to proceed any further in the matter. After the said issue having been resolved by the ultimate order of the Tribuna ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... evised order of assessment which was corrected in terms of the order of the appellate authority which had reached its finality before the Tribunal by the order of the Tribunal dated September 21, 1973. According to Mr. Pal the revised order was passed by the Assessing Officer on the basis of the direction given by the appellate authority. Hence, it is presumed that the question of payment of rebate and the rate of rebate had been decided by the ultimate authority once for all by taking into consideration all aspects of the matter including the legal aspects. Applying the doctrine of merger Mr. Pal has contended that the rectification of mistake in effect amounts to rectification of the order of the appellate authority which had merged in ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ces of this case. Sait Nagjee Purushotham and Co.P. Ltd. v. Third Addl.ITO [1964] 51 ITR 33 (Ker) : In this case a single judge of the Kerala High Court decided an issue with regard to rectification on the basis of a provision of law which was later on repealed. The point in issue before the Kerala High Court, was whether the assessment done prior to repeal of the said provision can be modified even after repeal following the old provision. In my view, this case has no application in the facts and circumstances of this case. T. S. Balaram, ITO v. Volhart Brothers [1971] 82 ITR 50 (SC) : This case has been cited by both the parties. Here the apex court held that a mistake apparent on the record must be an obvious and patent mistake and n ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... njab and Haryana High Court held that if a mistake of fact is apparent on the record of the assessment the same could be rectified under section 154. Similarly, a mistake of law which was glaring and obvious could also be similarly rectified. In this case the Income-tax Officer initially did not include the sales tax payable to the Government in the total income of the assessee, later on he has issued notice under sections 154 and 155 for rectification of mistake. This case also has no application in the instant case as the Assessing Officer himself upon realising the fact that he had committed an error in not including the amounts reserved for sales tax on the basis of the mercantile system of the accounting and rectified his own mistake b ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... none else. The Revenue accepted the order of the Tribunal, did not proceed with the reference application and allowed the same to be dismissed for non-prosecution. Having done so, the order of assessment passed by the Assessing Officer in compliance with the direction of the appellate authority has been accepted by the Revenue and the same cannot be reopened at this stage in the manner it has been attempted. In the result, the writ petition succeeds. Notice bearing No. PA(II)-000-CY- 6086/ CAL/ C-III/I.S.C. relating to the assessment year 1964-65 appearing at page 57 of the writ petition is quashed and set aside. This order of setting aside and/or cancellation of the said impugned notice would not in any way preclude the Revenue authorit ..... X X X X Extracts X X X X X X X X Extracts X X X X
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