1995 (5) TMI 54

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..... facts of the case are these : The assessee filed his return of income for assessment year 1984-85 declaring total income of Rs. 52,585. This included share income from the firm M/s. Navketan Knitwears, Ludhiana. We do not know the break-up of the income returned and so it is not possible to state as to how much share income from the said firm was declared by the assessee in his return. The Assess .....

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..... ver, accepted the assessee's plea and held that since the assessment had been made under section 143(1) by enhancing the income, which was not warranted in law, it gave rise to a mistake apparent from record which could be rectified. 4. The learned Departmental Representative submitted that the only remedy available to the assessee in the present case was to file an application on the prescribed .....

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..... consisted of rectification of any arithmetical error and of granting allowances under various sections as per the assessee's own record. The assessee had shown a particular share income from the firm M/s Navketan Knitwears Ludhiana. In our opinion, if the Assessing Officer wanted to make an assessment under section 143(1), then the only course open to him was to adopt the share income as shown by .....

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..... ment. In that view of the matter, since the Assessing Officer himself had passed an order which was contrary to the provisions of law, the assessee was within his rights to move an application under section 154 requesting for rectification of mistake apparent from record. it is true that in section 143 itself, there is an in-built mechanism to allow an opportunity to the assessee to object to an a .....

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..... ent case. We, therefore, do not accept the argument of the learned Departmental Representative that the only remedy available to the assessee in such a case was to file an objection in a prescribed form under section 143(2)(a) of the Act. The remedy chosen by the assessee was a valid remedy and was permitted by law. The assessee's discretion of choosing a remedy cannot be questioned. We, therefore .....

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