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TMI Blog1980 (11) TMI 26X X X X Extracts X X X X X X X X Extracts X X X X ..... e residence and offices of the consumers by virtue of section 33(6) of the Act. " Dr. Debi Pal, appearing on behalf of the petitioner drew my attention to s. 33(6) of the I.T. Act, 1961 (hereinafter referred to as " the Act which provides as follows: " Notwithstanding anything contained in the foregoing provisions of this section no deduction by way of development rebate shall be allowed in respect of any machinery or plant installed after the 31st day of March, 1965, in any office premises or any residential accommodation, including any accommodation in the nature of a guest-house. Provided that the provisions of this sub-section shall not apply in the case of an assessee being an Indian company, in respect of any machinery or plant in ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ns. It was not open to the Income-tax Officer to go into the true scope of the relevant provisions of the Act in a proceeding under section 154 of the Income-tax Act, 1961. 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 conceivably be two opinions. As seen earlier, the High Court of Bombay opined that the original assessments were in accordance with law though in our opinion the High. Court was not justified in going into that question. In Satyanarayan Laxminarayan Hegde v. Mallikarjun Bhavanappa Tirumale [1960] 1 SCR 890 ; AIR 1960 SC 137, this court, while spelling out the scope of the power of a High Court ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nal at Bombay in the case of Thana Electric Supply Co. Ltd. v. ITO (I.T.A. No. 3081 (Bom) of 1976-77) has taken a similar view. In that view of the matter, Dr. Pal contends that without going into the merits of the interpretation of s. 33(6) of the Act and in view of the fact that the ITO in the instant case has come to a different view as mentioned in the impugned notice from that taken by the two Income-tax Appellate Tribunals of Calcutta and Bombay, it is sufficient to show that two views are definitely conceivable and in fact have been taken and thereby make the provisions of s. 154 inapplicable to the present case as there is no mistake apparent on the record. Mr. Banerjee appearing on behalf of the respondents contended in the first ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the Act. Dr. Pal in reply to the question of prematurity of the application drew my attention to the decision of the Division Bench of this court in the case of ITO v. India Foils Ltd. [1973] 91 ITR 72. In that case, the identical question, that since there was no finality in the notice and the assessee could maintain an application only after the order is made, was raised. Dealing with this question P. B. Mukharji C.J. (as his Lordship then was), inter alia, observed as follows (p. 78): " Here, section 154 is quite clear that it must have to be a mistake apparent from the record and in the instant case a notice under section 154 was issued. If the notice was not in fact justified by the circumstances of the case then the notice itself ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hich has no application must be held to be without jurisdiction and bad. also accept the contention of Dr. Pal that the petitioner does not have to wait till the final order is passed on, the principle laid down by our Division Bench in the case mentioned above. I make it clear that it is not necessary for me to pronounce on the merits of the rival contention as to the interpretation of s. 33(6) of the Act. I am not doing so. As already indicated, I am of the view that s. 154 of the Act has no application to the instant case and, therefore, the impugned notice is bad. In the result, this application succeeds and the rule is made absolute. There will be a writ in the nature of mandamus directing the respondents to forthwith recall, cance ..... X X X X Extracts X X X X X X X X Extracts X X X X
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