9911796707
TMI Blog1979 (8) TMI 49X X X X Extracts X X X X X X X X Extracts X X X X ..... to be made on the ground of a mistake apparent from the record. In the cases before us, the assessment years with which we are concerned are 1967-68 and 1968-69. The assessee is a company whose income is derived from the manufacture and sale of yarn, cellulose film and other commercial products. For the years in question it had made an application for the issue of a tax credit certificate under s. 280ZB of the I.T. Act. That section, in so far as it is material, reads : 280ZB.--Tax credit certificate to certain manufacturing companies in certain cases.--(1) Where any company engaged in the manufacture or production of any of the articles mentioned in the First Schedule to the Industries (Development and Regulation) Act, 1951 (65 of 1 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ion of orders and certificates under certain circumstances. --(1) With a view to rectifying any mistake apparent from the record, the Commissioner may, by order in writing, amend any order passed by him under paragraph 5 and the Income-tax Officer may, by order in writing, amend any order passed by him under paragraph 4 ...... (4) No order under sub-paragraph (1) which prejudicially affects any person to whom the certificate was originally issued and no order under sub-paragraph (3) shall be made unless the officer passing the order has given notice to such person of his intention so to do and has allowed such person a reasonable opportunity of being heard. " The foundation for action under the above rule is the existence of a mistake ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ducts. (1) Paper--writing, printing and wrapping. (2) Newsprint. (3) Paper board and straw-board. (4) Paper for packaging (corrugated paper, craft paper, paper bags, paper containers and the like). (5) Pulp--wood pulp, mechanical, chemical including dissolving pulp." The officer took the view that the products in question manufactured by the assessee did not fall within entry 24(4) as claimed by the assessee but was " cellophane " which would not fall within the entry as claimed by the assessee. The short question agitated, therefore, was whether the cellophane would fall within the above entry as paper for packaging (corrugated paper, craft paper, paper bags, paper containers and the like). The learned judge took the view ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 42 in the First Schedule to the General Sales Tax Act which was construed by the Division Bench and which we have quoted above is not ad idem with entry 24(4) of the Industries (Development and Regulation) Act, 1951, which has to be construed in the present case and that it would be wrong and dangerous to import into the consideration of the said entry things which are germane to the consideration of a different entry altogether. We are impressed by this reasoning of counsel for the assessee. It seems to us there is a fundamental difference between the nature and the content of entry 24(4) of the First Schedule in the Industries (Development and Regulation) Act with which we are concerned, and entry 42 of the First Schedule to the Sales Tax ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nature of the entry is different ; and having regard to the terms and the content of entry 24(4) of the First Schedule of the 1951 Act, it is a still more vexed and difficult question as to whether cellophane would fall within the entry or be outside it. In the circumstances, we are by no means satisfied that there was any mistake apparent from the record in the original assessment made on the footing that the assessee was entitled to rebate in respect of the expenses claimed. On this short ground, it appears to us that the power of rectification was not attracted and that the ITO was wrong in passing the impugned order of rectification. Therefore, the learned judge's order allowing the writ petition and quashing the impugned orders was cor ..... X X X X Extracts X X X X X X X X Extracts X X X X
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