VIJAY MALLYA Vs. ASSISTANT COMMISSIONER OF INCOME TAX

JUDGEMENT

(1.) In W.P. No. 213 of 1996, the appellant as petitioner had challenged the jurisdiction of the Asstt. CIT, Investigation Circle 4(1), Calcutta, to issue the notice dated 9th Jan., 1996, for rectification of the assessment relating to the asst. yr. 1991-92 under Section 154 of the IT Act, 1961. The learned Single Judge, by an order dated 10th Sept., 2002, was pleased to dismiss the said writ petition. The present appeal has since been filed against the said decision. The letter accompanying the said notice (p. 70 of the paper book) discloses that the AO in the relevant assessment (asst. yr. 1991-92) had held the appellant as "nonresident", which is a mistake of fact apparent from the records, requiring rectification. From the assessment proceedings for the asst. yrs. 1992-93 and 1993-94 and the facts furnished by the assessee, it was found that the assessee was a resident for the year 1989-90. Though he could be a "non-resident" for the year 1990-91, but in the asst. yr. 1991-92, the status of the assessee should have been "ordinarily resident".

(2.) Mr. Pranab Pal, learned senior counsel for the appellant, pointed out from the order appealed against (p, 184 of the PB) that the learned Single Judge had held that the absence of reason in the assessment order is a mistake apparent from the record rectifiable under Section 154. He also pointed out that the learned Judge had held that the AO has not disclosed the reason for his holding the assessee "non-resident" either under Section 6(1)(a) or 6(1)(c) despite the assessee's claim that his status was "resident but not ordinarily resident". Mr. Pal contended that in the order favourable to the assessee, the AO is not supposed to give reasons. The proceeding is not an adversary proceeding,' requiring giving of reasons to support the finding, particularly, when holding in favour of the assessee. Therefore, absence of reason cannot be held to be an error apparent from the record. He secondly contended that in the notice itself (pp. 69-70 of the PB) the mistake was claimed to be a mistake of fact that his residential status for the asst. yr. 1991-92 should have been "ordinarily resident". The facts furnished showed that the assessee was in India for a duration of 180 days, which qualifies the assessee to a "non-resident" status under Section 6(1)(a) as well as under Section 6(1)(c) by reason of the Explanation thereunder. The assessee, a citizen of India, had claimed to have left India in connection with employment outside India. This was accepted by the AO. Therefore, the AO had treated the assessee as a "non-resident" under Section 6(1)(c) even if he was found to have been in India for more than 365 days within the preceding four years. Section 154 is attracted only in cases of mistake apparent from the record. Section 6(1)(c) contains an Explanation in respect of individuals. The Explanation conceives of two contingencies in Clauses (a) and (b), respectively. An assessee coming under Clause a) would acquire a non-resident status if he remains in India for less than 132 days. Whereas an assessee would acquire non-resident status under Clause (b) of the Explanation if he remains in India for a period less than 150 days. If the petitioner is to be fit in Clause (b) of the Explanation, in that event, there ought to be materials to bring the assessee within Clause (b). The notice does not disclose any material from which it can be said that the assessee comes under Clause (b) of the Explanation, if at all the assessee could be brought within Clause (b) of the Explanation, then it would be drawing of an inference from the facts which are not in dispute, amounting to a mistake in law. Though mistake in law may be treated as an error apparent from the records for the purpose of Section 154, but when such mistake is dependent on long drawn argument to establish such mistake or when two views could be possible on the basis of the admitted facts or where there are some doubts to conclusively establish that a person comes under Clause (b) except after long drawn argument, Section 154 cannot be attracted. Such a situation cannot be brought within the scope and ambit of mistake apparent from the records. According to him, in this case, if the assessee is required to be brought within Clause (b) of the Explanation, in that event, the Revenue requires to put forth a long drawn argument to establish the said fact and that too without any conclusiveness.

(3.) In support of his contention that it is not an adversary proceeding and, therefore, no reason is to be given in the assessment order. Mr. Pal relied on S.S. Gadgil v. Lal & Co. In support of his contention that Section 154 cannot be attracted where there is a debatable question on merit, he relied on CIT v. South India Bank Ltd., Bata India Ltd. v. IAC and Ors., Coates Of India Ltd. v. Dy. CIT and Ors., ITO and Anr. v. India Foils Ltd. He had relied on the last cited decision for another purpose, namely, that if the notice appears to be illegal, then the assessee cannot be made to wait till the assessment was made and that such notice can be challenged in writ Courts as well as on Harbans Lal Malhotra & Sons (P) Ltd. v. ITO and Anr., T.S. Balaram, ITO v. Volkart Bros. and Ors. He contended that since this petition is pending for a long time, it should not be dismissed on the ground of alternative remedy, relying on the decisions in Dhampur Sugar Mills Ltd. v. Union of India (2000) 122 ELT 333 (SC); Madura Coats Ltd. v. Asstt. Collector of Central Excise and Singh Alloys & Steel Ltd. v. Asstt. Collector of Central Excise (1993) 66 ELT 594 (Cal). Therefore, having regard to the facts and circumstances of the case, the writ petition ought to have been allowed. Therefore, the order appealed against should be set aside and the appeal should be allowed and the impugned notices should be quashed.