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TMI Blog1985 (9) TMI 18X X X X Extracts X X X X X X X X Extracts X X X X ..... ed in holding that it was not competent for the Inspecting Assistant Commissioner to make an order under section 154 of the Income-tax Act, 1961, for withdrawing the extra shift depreciation allowance allowed on the items of machinery and plant in regular assessment ? 2. Whether, on the facts and in the circumstances of the case, the Tribunal was justified in cancelling the orders of the Inspecting Assistant Commissioner and the Commissioner of Income-tax (Appeals) ?" In the assessment of M/s Maharaja Shri Umaid Mills Ltd., Pali, Marwar (hereinafter called " the assessee "), in respect of the assessment year 1974-75, extra shift depreciation allowance was claimed by the assessee in respect of plant and machinery added during the asses ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Assistant Commissioner of Income-tax that the assessee failed to give a reply or furnish details and that it should be presumed that the assessee has nothing to say in this respect. Thus, an order of rectification under section 154 of the Act was passed by the Inspecting Assistant Commissioner of Income-tax on September 21, 1979, recomputing the total income of the assessee by adding the amount of extra shift depreciation allowance which had been allowed in respect of first five items referred to above at the time of original assessment. On appeal by the assessee, the Commissioner of Income-tax (Appeals), Rajasthan, Jaipur, held that the five items in question were either excepted by inscription of letters " NESA " or are covered by oth ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... was argued before us on behalf of the Revenue that in respect of items like electric motors, transformers, weighing scales and amplifier control unit, there could not be two opinions as these items squarely fell within the definition " machinery and plant " to which the general rate of 10% depreciation is applied and in which no extra shift depreciation allowance was allowable. However, learned counsel for the Revenue could not make any submission in respect of the item acid tank. On the other hand, learned counsel for the assessee vehemently submitted that electric motors and electric motors control could not be considered as electrical machinery unless they fell squarely within the items specified in Part I of Appendix I annexed to the I ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e-tax Act could only be used for the purpose (if correcting mistakes apparent on the face of the record and such power is analogous to the power of the High Court of entertaining a petition for a writ of certiorari. Thus, if a mistake is not obvious and patent on the record and has to be established by a long drawn process of reasoning, then the taxing authorities have no jurisdiction to enter into a long drawn argument for the purpose of establishing such a mistake as it falls outside the purview of the provisions of section 154 of the Income-tax Act. If there may conceivably be two opinions on a question, it cannot be said that there is an error apparent on the face of the record. A decision on a debatable point of law cannot be held to b ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ve any reply in respect thereof and acid tanks. Although the assessee raised an objection, the Inspecting Assistant Commissioner did not consider the same. However, he withdrew the extra, shift depreciation allowance allowed by the assessing authority. While deciding the appeal, the Commissioner of Income-tax (Appeals) generally observed that the five items were either excepted by the inscription of letters " NESA " or they were covered by other items of machinery and plant on which no extra shift depreciation allowance was admissible. The Appellate Tribunal, without considering each individual item generally, hold that there could be two opinions and the question was debatable as to whether the extra shift depreciation allowance was admiss ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ribunal dated May 21, 1981. We are unable to agree with the Appellate Tribunal that they are questions of fact or that it was a finding of fact, and as we have observed above, the Tribunal has not recorded any finding at all. We, therefore, allow the application and direct the Income-tax Appellate Tribunal to state the case and refer the following two questions of law arising out of its order dated May 21, 1981, to this court for its opinion: " 1. Whether, on the facts and in the circumstances of the case, the Tribunal was justified in holding that it was not competent for the Inspecting Assistant Commissioner to make an order under section 154 of the Income-tax Act, 1961, for withdrawing the extra shift depreciation allowance allowed ..... X X X X Extracts X X X X X X X X Extracts X X X X
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