9911796707
TMI Blog1973 (7) TMI 38X X X X Extracts X X X X X X X X Extracts X X X X ..... also belonged to the assessee-firm and accordingly included the income from those hotels in the total income of the assessee. The assessment for the year 1960-61 was completed on 8th October, 1963, and for the year 1961-62, on 10th June, 1964. For the assessment year 1962-63 (with which we are concerned in this reference) the Income-tax Officer followed his earlier orders for the assessment years 1960-61 and 1961-62 and included the income from these hotels in the total income of the assessee. It is the common case of the parties that the assessee did not go in appeal to the Appellate Assistant Commissioner of Income-tax against the order of assessment of the Income-tax Officer for the year 1962-63. The assessee preferred an appeal to the A ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... er's order dated 19th October, 1967, forms part of the case as annexure "A". The assessee filed an appeal but the same was rejected by the Appellate Assistant Commissioner vide his order dated 23rd October, 1968 (copy annexure "B"). Still dissatisfied, the assessee filed a further appeal before the Tribunal but did not succeed, as is evident from the order of the Tribunal dated 28th April, 1970 (copy annexure "C"). Thereafter, the assessee filed an application requesting the Tribunal to refer to this court the question of law which arose out of the Tribunal's order and finding that the question of law did arise, the Tribunal has referred the following question for the opinion of this court : "Whether, on the facts and in the circumstances ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the Income-tax Officer, in exercise of his powers under section 154 of the Act, was competent to rectify the same. There is no dispute that the assessment order for the year 1962-63 was passed on the basis of the assessment orders for the years 1960-61 and 1961-62. In the order for the assessment year 1962-63, the Income-tax Officer only observed " full facts of the case have been discussed in the assessment order for the preceding year in which it was held that the assessee himself was the owner of the hotel and income from running of hotel was estimated at Rs. 10,000. There is no change in the position this year. The estimate of last year is repeated ". (Quoted from the order of the Appellate Assistant Commissioner, Income-tax, annexure ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... essee and he should be allowed a reasonable opportunity of being heard. The scope and effect of the expression 'mistake apparent from the record' and the extent of the powers of the Income-tax Officer under section 35 of the Act were discussed by this court in Venkatachalam v. Bombay Dyeing and Manufacturing Co. Ltd., where the facts were these: A sum of Rs. 50,063 being interest on tax paid in advance was given credit for under section 18A(5) of the Act. Subsequently, there was an amendment of the Act by which the interest became allowable only on the difference between the amount of tax paid and what was actually determined. As a consequence of this the Income-tax Officer purporting to act under section 35 of the Act rectified the mista ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rectified.' The decision of the Privy Council in Commissioner of Income-tax v. Khemchand Ramdas was referred to. Counsel for the appellant sought to distinguish both these cases, Venkatachalam's case and Khemchand's case, on the ground that the record there considered was the assessment record of that year and the Income-tax Officer did not have to go to the records of the previous year. That is a distinction without a difference. If, for instance, the Income-tax Officer had found that in the assessment year 1952-53 there was an apparent arithmetical mistake in the account of the written down value of the properties which resulted in a corresponding mistake in the assessment of the year in controversy, could he not take the corrected f ..... X X X X Extracts X X X X X X X X Extracts X X X X
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