9911796707
TMI Blog2019 (8) TMI 106X X X X Extracts X X X X X X X X Extracts X X X X ..... red view, the first issue that should have been taken into consideration is as to whether the power u/s 154 could have been invoked. Admittedly, the power u/s 154 is a power to rectify the mistake and it is not a power to review an order. Furthermore, the power can be invoked to rectify a mistake, which is apparent from the record which undoubtedly would mean that such power cannot be exercised by making roving enquiry into the matter specially where there are disputes raised by the assessee on which a decision requires to be given after considering the submissions. The Hon ble Apex Court in CIT VERSUS SOUTH INDIA BANK LTD. [ 2000 (12) TMI 6 - SUPREME COURT] noted that there was a difference of opinion among the learned Judges of the High C ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... facts and in the circumstances of the case, the Income Tax Appellate Tribunal was right in law in not holding that the appellant is entitled to claim exemption u/s.54, on transfer of the adjacent properties, being land appurtenant to the building, on th ground that the mode of acquisition of the properties were different and sold to different persons? (iv) Whether on the facts and in the circumstances of the case, the Income Tax Appellate Tribunal was right in law in not holding that the Assessing Officer is duty bound to assist the appellate in making a claim and allowing the same as exempt u/s. 54 on the whole property, even though the appellant had made claims under section 54 and 54F, instead of rejecting the same merely on technical ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 9;s share is 50 per cent. The said return was processed under Section 143(1) of the Act. Subsequently, notice under Section 143(2) was issued and the assessee's case was taken up for scrutiny in pursuance to which the assessee's authorised representative appeared and discussed the matter and the assessment was completed. Further notice was issued to the assessee by the Assessing Officer invoking his power under Section 154 of the Act, stating that there is an error in the assessment order which is required to be rectified. According to the Assessing Officer, the assessee claimed the entire capital gain arising from the sale of the two properties as exempt under Section 54 and Section 54F of the Act in the return filed by him, since ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... plea was raised that the order passed by the Assessing Officer under Section 154 is akin to an order passed under Section 143(3) read with Section 147 of the Act and there is no mistake apparent on the face of the original order and Section 154 could not have been invoked. The Tribunal did not consider this contention advanced by the assessee but proceeded to take note of the merits of the matter and dismissed the appeal. 8. In our considered view, the first issue that should have been taken into consideration is as to whether the power under Section 154 of the Act could have been invoked. Admittedly, the power under Section 154 is a power to rectify the mistake and it is not a power to review an order. Furthermore, the power can be invok ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the head 'interest on securities' and the provisions of Section 18 to 20 did not permit such deduction. 11. The matter went to the Tribunal and the Tribunal held that a debatable issue was involved that the assessing authority was therefore not justified in invoking the machinery for rectification under Section 154. The Hon'ble Apex Court noted that there was a difference of opinion among the learned Judges of the High Court on the principal question and held that there was a debatable question and cannot be rectified under Section 154 of the Act. 12. The learned counsel appearing for the revenue placed reliance on the decision of the Division Bench of this Court in the case of Commissioner of Income Tax Vs. Peirce Leslie & Co ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
