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TMI Blog1984 (7) TMI 122X X X X Extracts X X X X X X X X Extracts X X X X ..... s (P.) Ltd. for both the years were framed by the IAC on 31-1-1980 and that of Asian Signal industry (P.) Ltd. for the year 1978-79 was also framed by the same officer on 30-1-1980. Thereafter, the Finance (No. 2) Act, 1980 came into force and by that Act section 80AA of the Act was inserted in the Act with retrospective effect from 1-4-1968. According to section 80AA, net amount and not the gross amount of the dividends is allowed to be deducted under section 80M of the Act. Since there was no such provision at the time of framing the assessments in question, the IAC had allowed deduction of gross amount of dividends. With the coming into force of section 80AA with retrospective effect, the Commissioner considered that the said assessments ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... a and, therefore, any officer filling character of the ITO cannot be included therein. The learned counsel compared sections 263 and 264 of the Act and argued that if the intention of the Legislature was to clothe the Commissioner with the power to revise the order passed by any authority subordinate to him, instead of the words ' the ITO ', the words ' an authority subordinate to him ' as used in section 264 would have been used in section 263. According to the learned counsel, the general provisions contained in section 125A(4) that the references to the ITO shall be construed as the references to the IAC, cannot be extended to section 263 of the Act. 6. In support of his contention, the learned counsel placed reliance upon Gopal Das Gu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... refore, be read in seclusion as to limit its meaning to persona designata. Like investiture of powers of the ITO upon the IAC there was creation of post of the Additional Commissioner by making amendment in sections 116 and 130 of the Act. While interpreting those sections in context with powers of the Commissioner under section 263, the Hon'ble Delhi High Court in National Agricultural Co-operative Marketing Federation Ltd. v. CBDT [1972] 84 ITR 376 held that the word ' Commissioner ' in section 263 was not persona designata and included the Additional Commissioner. On the same analogy to section 125A(4) apart, the words, ' the ITO ' in section 263 cannot be taken as persona designata. The IAC is though superior in rank to the ITO but the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t taken as conferred upon the Director of Inspection in that case. In the cases of Ramlal Kishore Lal and Jeewanlal (1929) Ltd., the acts of the IAC and the AAC as such and not in the capacity of the ITO were under consideration and, therefore, none of the two cases have any relevance to the instant issue. 10. In view of the foregoing discussions, we hold that the Commissioner had jurisdiction under section 263 to, revise assessment order passed by the IAC functioning as the ITO under section 125A. 11. In support of his next argument, namely, that retrospective operation of the newly inserted section 80AA cannot be extended to the extent of reopening of the assessment already completed long before, the learned counsel placed reliance up ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... is plainly and obviously inconsistent with a specific and clear provision of the statute and that must inevitably be treated as a mistake of law apparent from the record. If a mistake of fact apparent from the record of the assessment order can be rectified under section 35, we see no reason why a mistake of law which is glaring and obvious cannot be similarly rectified. Prima facie it may appear somewhat strange that an order which was good and valid when it was made should be treated as patently invalid and wrong by virtue of the retrospective operation of the Amendment Act. But such a result is necessarily involved in the legal fiction about the retrospective operation of the Amendment Act. If, as a result of the said fiction we must rea ..... X X X X Extracts X X X X X X X X Extracts X X X X
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