COMMISSIONER OF INCOME TAX Vs. INDIA CEMENTS LTD

JUDGEMENT

(1.) IN compliance of the directions of this Court in TCP No. 142 of 1996, dt. 11th July, 1997 the Tribunal has stated the case and referred the following question of law for our consideration :-

(2.) THE assessment year with which we are concerned is 1984-85. In the original assessment made by the ITO, it was found that he did not make any disallowance under S. 43B of the IT Act on certain amounts collected by way of deposits. Subsequently, the ITO initiated proceedings under s. 154 of the Act on the ground that the deposits were collected towards the sale-tax, if any, payable by the assessee on the freight and packing charges and he rectified the mistake in the order of assessment on the ground that the assessee by letter dt. 20th Jan., 1988 has agreed to the rectification. However, it was found as a matter of fact, both by the CIT(A) as well as the Tribunal, that the assessee had never agreed to the rectification and in fact, the assessee has objected to the rectification of the order of assessment proposed by the ITO. The CIT as well as the Tribunal found that rectification proceedings were initiated with reference to an issue for which there is more than one view possible and hence it is a debatable issue. The question whether disallowance can be made when the amount was not shown in the P&L a/c and further the character of the receipt are also matters on which more than one view is possible. In other words it is the case wherein it cannot be said that only one view is possible on the facts; as it is found as on fact that more than one view is possible and in view of the same, it cannot be said that there is a mistake apparent from the records which calls for the exercise of power of rectification under S. 154 of the IT Act. We hold that the Tribunal was justified in taking the view that there was no mistake apparent on the face of the record and the ITO was not justified in taking the proceedings under s. 154 of the Act to disallow the allowance that was granted in the order of assessment. Consequently, we do not find any infirmity in the order of the Tribunal. In fairness, the learned counsel for the Revenue has not seriously questioned the correctness of the order of the Tribunal. Accordingly, we answer the question of law referred to us in the affirmative, in favour of the assessee and against the Revenue. However, in the circumstances of the case, there will be no order as to costs.