9911796707
TMI Blog1983 (2) TMI 39X X X X Extracts X X X X X X X X Extracts X X X X ..... ITO felt that he had committed a mistake in granting the relief under s. 80T of the Act and, therefore, he issued a notice under s. 154 of the Act for rectification of a mistake and for withdrawal of the relief granted under s. 80T of the Act. The assessee resisted the rectification proceedings initiated by the ITO., However, the ITO rectified his original order and cancelled the relief granted under s. 80T of the Act. Aggrieved by the order of rectification, the assessee took the matter in appeal to the AAC, who, however, held that under s. 67(2) of the Act, the assessee was entitled to the benefit of s. 80T of the Act in his assessment and, therefore, the ITO was not right in passing She order of rectification. The matter was taken by the Revenue to the Income-tax Appellate Tribunal, Madras. The contention of the Revenue before the Tribunal was that the AAC was in error in applying s. 67(2) o the Act to the facts of this case and that the ITO had power to rectify the mistake which he had committed while passing the original assessment order. The Tribunal held that s. 67(2) of the Act will not stand attracted to this case, that under s. 80T of the Act, the assessee is not entitle ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... me or loss of the firm as computed under sub-section (1) shall, for the purposes of assessment, be apportioned under the various heads of income in the same manner in which the income or loss of the firm has been determined under each head of income. The apportionment contemplated under that section of either the income or the loss of the firm should, no doubt, be under the various heads of income in the same manner in which the income or the loss of the firm had been determined. But this section does not enable the assessee to ignore the assessment made oil the firm and insist on a fresh assessment to be made under each head of income, ignoring the assessment made oil the firm. What the learned counsel for the assessee in this case says is that the share of the entire business loss and the share of capital gains should be brought under the heads of business and capital gains respectively and assessed in the partner's individual capacity. If the section is interpreted in the manner suggested by the learned counsel for the assessee, it will be against the language used in the section. What is contemplated is the apportionment of the loss or of the income of the firm. In this case ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... oning on points on which there may be conceivably two opinions and that a decision on a debatable point of law is not a mistake apparent from the record. However, we are of the view that the mistake in this case, that is, the grant of relief under s. 80T of the Act by the ITO is a mistake apparent on the record as contemplated by s. 154 of the Act. The ITO has applied erroneously the provision in s. 80T of the Act to the facts which do not call for its application. If a provision, which is inapplicable to the facts, has been applied, then it is a mistake on the face of the record. To find out whether there is a mistake which could be rectified under s. 154 of the Act, one has to see whether the provision is applicable to the facts of the case. If on the face of it, it is not applicable, then the application of the provision will be a mistake. In this case, as already stated, the assessee claims the benefit of s. 80T of the Act read with s. 67(2) of the Act. If s. 67(2) is not applicable, then the application of s. 80T is out of question. If the ITO has given the relief under s. 80T which the assessee is not entitled on the language of the section, then it will be a mistake appare ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... iscountenance it as being not a mistake apparent from record. In the ultimate analysis, the conclusion a well equipped and trained judicial mind will reach after scrutinising the record, will govern and his finding whether it is a mistake or not has to be accepted." The learned judges further expressed that the jurisdiction of the officer to rectify a mistake depended on the mistake being apparent from the record, that the power to rectify is not confined only to the rectification of some clerical or arithmetical mistakes, but at the same time it will not cover any mistake which has to be discovered by a complicated process of investigation, argument or proof. The Bench further observed, after considering the relevant decision of this court as well as the Supreme Court on that point, that for a rectification of an error which is said to be apparent from the face of the record, the mere complexity of the problem or that genuine argument is necessary to discover the same may not by themselves be sufficient to oust the jurisdiction of a Tribunal to rectify such a mistake and that if it could be discerned with some precision after a fair probe into the assessment records and a reason ..... X X X X Extracts X X X X X X X X Extracts X X X X
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