RASIKLAL KAMDAR Vs. COMMISSIONER OF INCOME TAX

JUDGEMENT

(1.) FOR the assessment year 1962-63, relevant to the accounting year ending on March 31, 1962, the assessee filed his return on April 30, 1964. The Income-tax Officer completed the assessment on March 31, 1967. While calculating the interest payable under Section 139(1)(iii) of the Income-tax Act, 1961 (hereinafter referred to as "the Act"), the Income-tax Officer deducted the advance tax, the tax deducted at source and also the tax paid pursuant to the provisional assessment made under Section 141 of the Act. Subsequently, the Income-tax Officer realised that a mistake had been committed in deducting the tax paid pursuant to the provisional assessment under Section 141 for the purpose of calculating the interest. Consequently, a notice dated March 18, 1968, was issued to the assessee for rectifying the mistake in the assessment order under the provisions of Section 154 of the Act. The notice was served on the assesses on March 21, 1968. There was no reply from the assessee. Thereafter, the Income-tax Officer, by his order dated March 30, 1968, passed an order under Section 154 by rectifying the mistake. What he did was to add the tax paid pursuant to the provisional assessment made under Section 141 to the tax determined for the purpose of calculating the interest payable under Section 139(1)(iii) of the Act. The assessee preferred an appeal to the Appellate Assistant Commissioner of Income-tax, who confirmed the order of the Income-tax Officer. Thereafter, the assessee preferred an appeal to the Income-tax Appellate Tribunal. Before the Tribunal the assessee contended that under Section 139(1)(iii) even the tax paid pursuant to the provisional assessment was deductible and, therefore, there was no mistake committed by the Income-tax Officer in the original assessment order, which could be rectified under Section 154 of the Act. He also contended that in any event the point was a debatable one and, therefore, it could not be held that the original order of assessment contained an error apparent which could be rectified under Section 154. The Income-tax Appellate Tribunal rejected both these contentions. It is, thereafter, at the instance of the assessee, the Income-tax Appellate Tribunal, under Section 256(1) of the Act, has referred the following questions for the opinion of this court;

(2.) SECTION 139 of the Act deals with the return of income. The main provision contained in SECTION 139(1) deals with the time within which the return of income has to be filed by an assessee. The proviso to that SECTION enables the Income-tax Officer to extend the time, on an application made by an assessee in the prescribed manner, for furnishing the return. Clause (iii) of this proviso says :