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TMI Blog2000 (2) TMI 81X X X X Extracts X X X X X X X X Extracts X X X X ..... Wealth-tax Officer on the ground that there is no mistake apparent from record to be rectified under section 35 of the Wealth-tax Act ?" The assessment years with which we are concerned are 1975-76 to 1978-79 and the relevant valuation date ended on 12th April each year. The assessee filed her returns of wealth for the said assessment years wherein she had declared the status to be a person "not ordinarily resident" in India. The Wealth-tax Officer, while completing the assessment, granted the concessional rate at 50 per cent. of tax available to a non-resident under rule 3, Part 11 of Schedule I to the Wealth-tax Act, 1957, and completed the assessment. Later, the Wealth-tax Officer found that the assessee was a resident and she was not ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Act is sustainable in law or not. It is not disputed that the assessee is an individual. She was a resident, but not ordinarily resident, during the previous years relevant to the assessment years in question. When she filed the returns for the assessment years in question, she declared her status to be a person "not ordinarily resident" in India. The assessee, on her own showing, declared her status to be a resident but, not ordinarily resident, Rule 3, Part II of Schedule I to the Wealth-tax Act, the relevant rule granting the concession, reads as under : "Where an assessee is an individual who is not a citizen of India and who is not resident in India, the wealth-tax payable by him in respect of any assessment year computed in accorda ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nt ordinarily resident-assessee" and "resident not ordinarily resident-assessee", but both classes of assessee would fall within the scope of the expression, "resident-assessee". The assessee by showing her status to be a resident but not ordinarily resident, had declared that she was not a non-resident assessee during the relevant valuation dates, and on her own showing, she is not eligible for the rebate of tax granted under the orders of assessment. The concession available to a non-resident granted by the Wealth-tax Officer to a resident-assessee is a mistake apparent from the record and when the Wealth-tax Officer examined the records of the assessee in the light of the provisions of the relevant rules, the mistake would be apparent fr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... drawn in rectification preceedings. The Gujarat High Court held that when an assessee claims the status of not ordinarily resident, he is not a non-resident, and, the assessee is. not entitled to the benefit of rebate of 50 per cent, of the tax under rule 3 of the relevant schedule. We respectfully concur with the view expressed by the Gujarat High Court. Learned counsel for the Revenue also placed reliance on the decision of the Travancore-Cochin High Court in the case of P. B. L. Bava v. CIT [1955] 27 ITR 463 wherein the Travancore-Cochin High Court held that under the Income-tax Act, a broad distinction is made between those who are resident, and those who are not resident and when the assessee is found to be a resident, the further qu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ee placed strong reliance on the decision of the Supreme Court in T. S. Balaram, ITO v. Volkart Brothers [1971] 82 ITR 50, wherein the apex court held as under : "A mistake apparent on the record must be an obvious and patent mistake and not something which can be established by a long drawn process of reasoning on points on which there may be conceivably two opinions. A decision on a debatable point of law is not a mistake apparent from the record." The ratio laid down by the Supreme Court does not help the assessee as the tests laid down by the Supreme Court when the mistake can be regarded as a mistake apparent from the record, are fully satisfied in the instant case. Learned counsel for the assessee also invited our attention to ..... X X X X Extracts X X X X X X X X Extracts X X X X
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