Sri.A.Younuskunju, Kollam V. The DCIT, Kollam

ITA 215/COCH/2007

• Counselvise Citation: [2014] 140 COUNSELVISE.COM (IT) 81328 (ITAT-COCHIN)
• Duration Of Justice: 7 year(s) 5 month(s) 15 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 05-09-2014
• Appeal Filed By: Assessee
• Bench Allotted: DB
• Next Hearing Date: 21-07-2014
• Assessment Year: 1985-1986
• Appeal Filed On: 20-03-2007
• Court: TRIBUNAL
• Department Lawyers: K K JOHN
• Assessee Lawyers: N S RAJAGOPAL
• Keywords: Rectification of order
• Section: 143(3); 244A; 154

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL COCHIN BENCH, COCHIN BEFORE S/SHRI N.R.S.GANESAN, JM AND CHANDRA POOJ ARI, AM I.T.A. NO. 215/COCH/2007 ASSESSMENT YEAR : 1985-86 SHRI A. YOUNUSKUNJU, YOUNUS CASHEW INDUSTRIES, VADAKKEVILA, KOLLAM. [PAN: AERPK 1800K] VS. THE DEPUTY COMMISSIONER OF INCOME-TAX, CIRCLE-1, KOLLAM. (ASSESSEE -APPELLANT) (REVENUE-RESPONDEN T) ASSESSEE BY SHRI N.S. RAJAGOPAL, CA REVENUE BY SHRI K.K. JOHN, SR. DR DATE OF HEARING 21/07/2014 DATE OF PRONOUNCEMENT 05/09/2014 O R D E R PER CHANDRA POOJARI, ACCOUNTANT MEMBER: THIS APPEAL FILED BY THE ASSESSEE IS DIRECTED AGAI NST THE ORDER DATED 08- 12-2006 PASSED BY THE LD. CIT(A),TRIVANDRUM FOR THE ASSESSMENT YEAR 1985- 86. 2. THE BRIEF FACTS OF THE ASSESSEE ARE THAT THE ASS ESSMENT FOR THE ASSESSMENT YEAR 1985-86 WAS ORIGINALLY COMPLETED U/ S. 143(3) ON 28/03/1988 WHICH WAS SET ASIDE BY THE CIT(A) VIDE ORDER DATED 24-11-1988. THE SET ASIDE ASSESSMENT WAS SUBSEQUENTLY COMPLETED ON 22-03-1991 . IN THE MEANTIME, IT WAS STATED THAT AN APPLICATION U/S. 245C OF THE INC OME TAX ACT WAS FILED I.T.A. NO.215/COCH/2007 2 BEFORE THE ADDITIONAL BENCH OF THE INCOME TAX SETTL EMENT COMMISSION, CHENNAI ON 28/08/1989. THE SETTLEMENT COMMISSION PA SSED ORDER U/S. 245D(4) OF THE ACT ON 29/06/1993 WHICH WAS GIVEN EF FECT TO BY THE ASSESSING OFFICER VIDE PROCEEDINGS DATED 26/06/1994. IT WAS SUBMITTED THAT THE PROCEEDINGS DATED 26-06-1994 WAS FURTHER REVISED ON 14-08-2003 TO ADOPT THE CORRECT SHARE INCOME FROM A PARTNERSHIP FIRM WHERE THE ASSESSEE WAS A PARTNER RESULTING IN REFUND OF RS.8,90,706/-. SUBSEQUENTLY , THE ASSESSING OFFICER ISSUED NOTICE U/S. 154 OF THE I.T. ACT ON 09-06-2005 PURPO RTING TO RECTIFY MISTAKE IN THE PROCEEDINGS DATED 14-08-2003 ON THE PLEA THAT T HESE WERE AN OMISSION TO CHARGE INTEREST U/S. 220(2) OF THE I.T. ACT WHICH C ONSTITUTED A MISTAKE APPARENT ON THE FACE OF THE RECORD. FURTHER, THERE IS LEVY O F INTEREST U/S. 245D(6A) AND WITHDRAWAL OF INTEREST U/S. 244(1A) OF THE I.T. ACT . 3. ON APPEAL, THE CIT(A) OBSERVED THAT THE ASSESSIN G OFFICER HAS PASSED AN ORDER U/S. 143(3) R.W.S. 250 ON 22-03-1991 AS A RES ULT OF WHICH A SUM OF RS.58,23,404/- WAS DEMANDED FROM THE ASSESSEE. THE CIT(A) FURTHER NOTICED THAT THE ASSESSING OFFICER HAS PASSED THE ORDER DAT ED 27-09-2006 PASSED SUBSEQUENT TO THE ORDER DATED 18-07-2006 AGAINST WH ICH THIS APPEAL WAS FILED RECTIFYING THE MISTAKE AND WAS CHARGED INTEREST U/S . 220(2) OF THE I.T. ACT FROM THE DATE OF COMPLETION OF REASSESSMENT I.E., 22-03- 1991. THE ASSESSEE WAS REQUIRED TO PAY BALANCE TAX BY 02-05-1991 AS A RESU LT OF COMPLETION OF REASSESSMENT. THE CIT(A) JUSTIFIED THE ACTION OF T HE ASSESSING OFFICER IN I.T.A. NO.215/COCH/2007 3 CHARGING INTEREST U/S. 220(2) OF THE I.T. ACT IN VI EW OF THE SPECIFIC PROVISIONS OF SEC. 220(2) OF THE I.T. ACT. THE ASSESSING OFFICER HAS DEMANDED TOTAL TAX OF RS. 58,23,404/- VIDE ORDER DATED 22-03-1994 WHICH WAS R EDUCED TO RS.12,74,554/- AND AFTER GIVING THE ADJUSTMENT OF TAX PAID AND REF UND DUE, BALANCE DEMAND OF RS.5,21,163/- HAD BECOME PAYABLE AS PER ORDER OF TH E SETTLEMENT COMMISSION U/S. 245D DATED 29-06-1993. THE CIT(A) ALSO JUSTIF IED THE ACTION OF THE ASSESSING OFFICER IN APPLYING THE PROVISIONS OF SEC . 220(2) OF THE I.T. ACT. SUBSEQUENT TO THE ORDER PASSED BY THE SETTLEMENT CO MMISSION, PROVISIONS OF SEC. 245D(6A) BECAME APPLICABLE IN THIS CASE. THUS , THE CIT(A) FOUND NO INFIRMITY IN THE ORDER PASSED BY THE ASSESSING OFFI CER U/S. 154 OF THE ACT IN REGARD TO LEVY OF INTEREST U/S. 220(2) AND SEC. 245 D(6A) OF THE I.T. ACT. 4. REGARDING WITHDRAWAL OF INTEREST ALREADY GRAN TED U/S. 244(1A), THE CIT(A) OBSERVED THAT U/S. 244(1A), INTEREST IS TO BE GRANT ED IF THE WHOLE OR IN PART OF THE REFUND REFERRED TO IN SUB-SECTION (1) OF SEC. 2 44 IS DUE TO THE ASSESSEE AS A RESULT OF ANY AMOUNT HAVING BEEN PAID BY HIM AFTER THE 31 ST DAY OF MARCH, 1975 IN PURSUANCE OF ANY ORDER OF ASSESSMENT OR PEN ALTY AND SUCH AMOUNT OR ANY PART THEREOF HAVING BEEN FOUND IN APPEAL OR OTH ER PROCEEDINGS UNDER THIS ACT BE IN EXCESS OF THE AMOUNT WITH SUCH ASSESSEE I S LIABLE TO PAY AS TAX OR PENALTY AS THE CASE MAY BE UNDER THE ACT. TO BE EN TITLED TO INTEREST U/S. 244(1A) OF THE I.T. ACT, THE ASSESSEE MUST BE ENTIT LED TO REFUND. HOWEVER, IN THIS CASE, THE CIT(A) OBSERVED THAT ASSESSEE IS NOT ENTITLED TO ANY REFUND. IN I.T.A. NO.215/COCH/2007 4 THE CASE OF THE ORDER U/S. 154 OF THE I.T. ACT, THE ASSESSEE WAS REQUIRED TO PAY ADDITIONAL DEMAND WITH REFERENCE TO THE TAX AND INT EREST CALCULATED VIS--VIS THE PAYMENT MADE BY HIM AS TAX. HENCE, THE CIT(A) C ONFIRMED THE DISALLOWANCE OF INTEREST U/S. 244(1A) OF THE ACT MA DE BY THE ASSESSING OFFICER. AGAINST THIS, THE ASSESSEE IS IN APPEAL BEFORE US. 5. THE LD. AR SUBMITTED THAT INTEREST U/S. 220(2) W AS NOT LEVIABLE IN THE PRESENT CASE FOR THE FOLLOWING REASONS: A) ONCE THE SETTLEMENT COMMISSION PASSES AN ORDER U/S. 245D(1) OF THE INCOME TAX ACT ALLOWING THE APPLICATION TO BE ADMI TTED, THEN REGULAR ASSESSMENT U/S. 143(3)/144 LOSE THEIR EXISTENCE. FOR THIS, HE RELIED ON THE DECISION OF THE CONSTITUTION BENCH IN THE CASE OF BRIJ LAL VS. CIT REPORTED IN 328 ITR 477 (SC). B) THE FACT THAT THE DEMAND RAISED BY THE ASSESSME NT ORDER IS NOT VALID HAS BEEN ADMITTED BY THE DEPARTMENT IN THE PROCEED INGS DATED 23-08- 1983 GIVING EFFECT TO THE SETTLEMENT COMMISSION O RDER. IT HAS BEEN STATED IN THE PROCEEDINGS DATED 23/08/1993 AS FOLL OWS: THE DEMAND OF RS. 5723404/- OUTSTANDING AS PER T HE ASSESSMENT ORDER U/S. 143(3) DATED 22-03-1991 AS THIS ASSESSM ENT IS NO MORE VALID IN LAW. C) INTEREST HAS ALREADY BEEN LEVIED U/S. 245D(2C) A ND U/S. 245D(6A) FOR THE DELAY IN THE PAYMENT OF THE TAX DETERMINED ON T HE TOTAL INCOME FOR THE ASSESSMENT YEAR 1985-86 AND ANY FURTHER LEVY OF INTEREST U/S. 220(2) WILL RESULT IN A DOUBLE LEVY OF INTEREST. D) THE ASSESSMENT MADE BY THE SETTLEMENT COMMISSION U/S. 245D(4) IS AFTER TAKING INTO CONSIDERATION THE INCOME RETURNED AND THE INCOME DISCLOSED. THERE IS NO PLACE FOR THE ASSESSED INCOM E U/S. 143(3). SECTION 245D(4) ASSESSMENT IS A COMPREHENSIVE ASSESSMENT DO NE AFRESH. THERE IS I.T.A. NO.215/COCH/2007 5 NO QUESTION OF THIS ASSESSMENT U/S. 245D(4) RELATIN G BACK TO THE DATE OF REGULAR ASSESSMENT U/S. 143(3)/144/147 OF THE INCOM E TAX ACT. E) IF AT ALL INTEREST U/S. 220(2) HAS TO BE LEVIED, IT CAN BE DONE ONLY BY THE SETTLEMENT COMMISSION AS THE SETTLEMENT COMMISSION EXERCISES EXCLUSIVE JURISDICTION AFTER ADMISSION OVER THE CASE U/S. 245 I. THE ASSESSING OFFICER IS NOT EMPOWERED TO LEVY INTEREST U/S. 220(2) IN RE SPECT OF A MATTER DECIDED BY THE SETTLEMENT COMMISSION. IN THIS CASE, THE SETTLEMENT COMMISSION HAS NOT AUT HORIZED ANY LEVY OF INTEREST U/S. 220(2). IF THAT BE SO, INTEREST U/S. 220(2) CANNOT BE LEVIED BY THE ASSESSING OFFICER. RELIANCE IS PLACE ON THE DECISION IN THE CASE OF L. N. GADODIA & SONS (P) LTD. VS. DCIT (DEL) 207 CTR 669. F) THE ISSUE INVOLVED IS A DEBATABLE ISSUE AND HENC E THE PROVISIONS OF SECTION 154 CANNOT BE INVOKED. 6. REGARDING WITHDRAWAL OF INTEREST U/S. 244(1A) OF THE ACT, THE LD. AR SUBMITTED THAT INTEREST U/S. 244(1A) ONCE GRANTED C ANNOT BE WITHDRAWN BY RESORT TO RECTIFICATION U/S. 154. ACCORDING TO THE LD. AR THE LANGUAGE OF THE SECTION DO NOT AUTHORIZE FOR ANY REDUCTION OR WITHDRAWAL AS IN INTEREST U/S. 244A SUB-SECTION (3). THE LD. AR RELIED ON THE FOLLOWING DECISIONS IN SUPPORT OF THE ABOVE PROPOSITION: (A) CIBATUL LTD. VS. IAC (201 ITR 507) (GUJ.). (B) CIT VS. LEADER VALUES (P) LTD. (ASR.) 100 TTJ 913 (C) V.M. SALGAONKAR & BROS. (P) LTD. VS. ITO (BANG .) 52 TTJ 218. 7. THE LD. AR SUBMITTED THAT IT IS A DEBATABLE ISSUE AND HENCE RESORT CANNOT BE MADE TO SEC. 154. ACCORDING TO THE LD. AR NO NO TICE GIVEN TO THE ASSESSEE IN I.T.A. NO.215/COCH/2007 6 RESPECT OF THE ACTION TO WITHDRAW THE INTEREST ALRE ADY GRANTED UNDER SECTION 244(1A) AND NOTICE U/S. 154 DATED 09/06/2005 IS SIL ENT ON THIS POINT. 8. WITH REGARD TO ENHANCEMENT OF INTEREST U/S. 2454 D(6A), THE LD. AR SUBMITTED THAT INTEREST U/S. 245D(6) AMOUNTING TO R S.41499/- WAS LEVIED IN THE PROCEEDING DATED 14-08-2003 WHICH HAS BEEN ENHANCED TO RS.79355/- AFTER RECTIFICATION U/S. 154. ACCORDING TO THE LD. AR TH IS IS NOT AN ISSUE FOR WHICH NOTICE HAS BEEN GIVEN TO THE ASSESSEE WHICH IS AGAI NST THE PROVISIONS OF SEC. 154(3) OF THE ACT. THERE IS NO CHANGE IN THE TOTAL INCOME OR TAX PAYABLE AND HENCE THE RECOMPUTTION OF INTEREST U/S. 245D(6A) AT RS. 79355/- IS PATENTLY WRONG. 9. HENCE, THE LD. AR CONCLUDED THAT ALL THE ISSUES ARE HIGHLY DEBATABLE ISSUES ON WHICH THERE CAN BE TWO OPINIONS AND HENCE RECTIFICATION PROCEEDINGS U/S. 154 ARE INVALID. FOR THIS, HE RELIED ON THE F OLLOWING JUDGMENTS OF THE SUPREME COURT: T.S. BALARAM ITO VS. VOLKART BROS. (82 ITR 50 (SC) DINOSAUR STEELS LTD. VS. JCIT (349 ITR 36 0) (SC). 10. ON THE OTHER HAND, THE LD. DR SUBMITTED THAT IN VIEW OF THE SPECIFIC PROVISIONS OF SEC. 220(2) OF THE I.T. ACT, THE ASSE SSING OFFICER IS JUSTIFIED IN CHARGING INTEREST. A READING OF THE PROVISIONS OF SECTION 220(1) AND 220(2) ALONG I.T.A. NO.215/COCH/2007 7 WITH 245D(6A) MAKES IT CLEAR THAT LEVY OF THESE INT ERESTS ARE STATUTORILY ENFORCEABLE. NON-LEVY OF THESE DUES ARE MISTAKES A PPARENT FROM THE RECORDS TO BE REVISED U/S. 154. 11. THE LD. DR RELIED ON THE FOLLOWING CASE LAWS WH ICH HAVE DECIDED THAT OVERLOOKING MANDATORY PROVISIONS OF LAW IS A MISTA KE WHICH CAN BE RECTIFIED: 1. ADDL. CIT VS. INDIA TIN INDS. (P) (LTD.) (166 I TR 454) (KAR.) 2. ITO VS. ASHOK TEXTILES LTD. (411 ITR 732) (SC) 3. CIT VS. PIERCE LESLIE & CO. LIMITED 227 ITR 75 9 (MADRAS) 12. THE LD. DR ALSO PLACED RELIANCE ON THE DECISION OF THE HONBLE MADRAS HIGH COURT IN THE CASE OF J.JAYALALITHA VS. CIT & O THERS (244 ITR 74) WHEREIN IT WAS HELD THAT ACCRUAL OF INTEREST U/S. 220(2) IS A UTOMATIC. NO OPPORTUNITY TO BE GIVEN BEFORE LEVY. 13. THE LD. DR ALSO RELIED ON THE FOLLOWING JUDGMEN TS WHEREIN IT WAS HELD THAT 220(2) INTEREST IS TO BE CHARGED FROM THE DAT E OF ORIGINAL ORDER ITSELF. 1. SUPER SPINNING MILLS LTD. VS. CIT (244 ITR 814) (MADRAS) 2. B. INDIRA RANI VS. CIT & OTHERS (237 ITR 20) (K ERALA) 3. K. VENUGOPALAN NAMBIAR VS. CIT (231 ITR 607) (K ERALA) 14. THE LD. DR SUBMITTED THAT IN THIS CASE AFTER OR DER U/S. 143(3) R.W.S. 250 AND 144A DATED 22-03-1991, THERE WAS ORIGINAL DEMAN D OF RS. 58,23,404/- AND I.T.A. NO.215/COCH/2007 8 AS A RESULT OF GIVING EFFECT TO THE SETTLEMENT COMM ISSION ORDER ON 26/06/1994, THE BALANCE DEMAND PAYABLE WAS RS. 5,21,163/-. 15. THE LD. DR SUBMITTED THAT THE ABOVE ORDER WAS R EVISED ON 14/08/2003 TO ADOPT THE CORRECT SHARE INCOME FROM FIRM WHERE ASSE SSEE WAS A PARTNER AND REFUND OF RS.8,90,706/- WAS ISSUED TO THE ASSESSEE. THE LD. DR FURTHER SUBMITTED THAT THIS WAS FURTHER RECTIFIED U/S. 154 DATED 18/07/2006 WHEN THE ASSESSING OFFICER REALISED THAT INTEREST U/S. 220(2 ) AND 245D(6A) WERE OMITTED TO BE CHARGED. EVEN THOUGH LEVY OF THIS INTEREST U/S. 220(2) AND 245D(6A) IS MANDATORY, STILL THE ASSESSING OFFICER ISSUED NOTIC E U/S. 154 TO THE ASSESSEE. ACCORDING TO THE LD. DR AFTER LEVY OF THE ABOVE INT EREST, THERE WAS NO REFUND PAYABLE TO THE ASSESSEE. 16. THE LD. DR SUBMITTED THAT THIS WAS FURTHER RECT IFIED ON 27/09/2006 ON APPLICATION OF THE ASSESSEE THAT INTEREST U/S. 220( 2) WAS CHARGED FROM APRIL 1998 AND SHOULD HAVE BEEN CHARGED ONLY FROM APRIL 1991 W HICH WAS DULY ACCEPTED BY THE ASSESSING OFFICER. 17. REGARDING WITHDRAWAL OF INTEREST ALREADY GRANTE D U/S. 244(1A) BY AN ORDER U/S. 154, THE LD. DR SUBMITTED THAT FOR GRANTING OF INTEREST U/S. 244(1A), THE FOREMOST CONDITION IS THAT THERE SHOULD BE A REFUND IN THE FIRST INSTANCE. IN THIS CASE, ACCORDING TO THE LD. DR, AFTER LEVY OF INTERE ST U/S. 220(2) AND 245D(6A), I.T.A. NO.215/COCH/2007 9 THERE WAS DEMAND AND HENCE THE ASSESSEE WAS NOT ELI GIBLE FOR INTEREST U/S. 244(1A). 18. IN VIEW OF THE ABOVE FACTS, THE LD. DR SUBMITTE D THAT THE RECTIFICATION ORDER PASSED BY THE ASSESSING OFFICER IS PERFECTLY VALID AND THE INTEREST U/S. 220(2), 245D(6A) AND 244(1A) HAVE BEEN CORRECTLY DE ALT WITH BY THE ASSESSING OFFICER AND THEREFORE, THE SAME MAY BE CONFIRMED BY THE TRIBUNAL. 19. WE HAVE HEARD THE PARTIES AND PERUSED THE RECOR D. IN THIS CASE, ORIGINALLY, THE ASSESSEE CAME IN APPEAL BEFORE THIS TRIBUNAL AGAINST THE IMPUGNED ORDER OF THE CIT(A) DATED 08-12-2006 THE TRIBUNAL V IDE ITS ORDER DATED 26 TH FEBRUARY, 2009 DISMISSED THE APPEAL OF THE ASSESSEE BY OBSERVING AS FOLLOWS: 5.WE HEARD BOTH SIDES IN DETAIL. EVEN THOUGH THIS APPEAL ARISES OUT OF THE ORDER PASSED BY CIT(APPEALS) IN A PROCEEDING CONCLU DED BY THE ASSESSING OFFICER U/S. 154, THE PITH AND SUBSTANCE OF THE ASS ESSMENT WAS IN FACT DETERMINED BY THE SETTLEMENT COMMISSION. ALL SUBSE QUENT PROCEEDINGS INITIATED BY THE ASSESSING OFFICER WERE THE FALL OU T OF THE ORDER PASSED BY THE SETTLEMENT COMMISSION. AS SUCH THIS TRIBUNAL C ANNOT EXAMINE ANY INVOLVING THE MATTERS SUBJECTED TO THE ASSESSMENT. WHEN THIS TRIBUNAL HAS NO SAY ON THE SUBJECT MATTER OF THE ASSESSMENT, THE TRIBUNAL CANNOT BE CALLED UPON TO EXAMINE THE FALL OUT ORDERS PASSED B Y THE ASSESSING OFFICER. THEREFORE, IN THE FACTS AND CIRCUMSTANCES OF THE CA SE, WE DISMISS THE APPEAL FILED BY THE ASSESSEE AS NOT MAINTAINABLE BE FORE THE TRIBUNAL. . 20. AGAINST THE ORDER OF THE TRIBUNAL, THE ASSESSE E FILED AN APPEAL BEFORE THE HONBLE HIGH COURT. THE HONBLE HIGH COURT, WHILE ADJUDICATING THE ISSUE, OBSERVED THAT THE TRIBUNAL OUGHT TO HAVE DECIDED TH E APPEAL ON MERITS AFTER I.T.A. NO.215/COCH/2007 10 ENTERTAINING THE SAME. ACCORDINGLY, THE HIGH COURT SET ASIDE THE ORDER OF THE TRIBUNAL AND REMITTED THE ISSUE BACK TO THE FILE OF THE TRIBUNAL TO DISPOSE OF THE MATTER ON MERITS AS THE ASSESSEE HAS THE RIGHT TO F ILE THE APPEAL AGAINST THE ORDER OF THE CIT(A) PASSED U/S. 246A OF THE ACT. A CCORDINGLY, THIS CASE CAME UP BEFORE THIS TRIBUNAL. 21. WE HAVE CAREFULLY GONE THROUGH THE ARGUMENTS OF BOTH THE PARTIES. IN THIS CASE, THE ISSUE WAS TAKEN UP BY THE ASSESSING OFFIC ER WITH REGARD TO RECTIFYING INTEREST U/S. 245D(6A) AND ALSO WITHDRAWAL OF INTER EST WHICH WAS ALREADY GRANTED U/S. 244(1A) OF THE I.T. ACT UNDER PROCEEDINGS OF S EC. 154 OF THE I.T. ACT AND LEVY OF INTEREST U/S. 220(2) OF THE I.T. ACT. MER ELY BECAUSE THE ASSESSING OFFICER HAS WRONGLY ALLOWED THE CLAIM OF INTEREST UNDER THE ABOVE PROVISIONS, HE INTENDED TO RE-COMPUTE THE SAME THROUGH RECTIFICATI ON PROCEEDINGS. IN OUR OPINION, EVEN IF HE HAS GRANTED THE ABOVE INTEREST WRONGLY, THAT WILL NOT ENTITLE THE ASSESSING OFFICER TO FORM A GROUND AND AGITATE BY MEANS OF RECTIFICATION PROCEEDINGS U/S. 154 OF THE ACT, UNLESS IT CAN BE S AID THAT THERE IS A BLATANT AND APPARENT MISTAKE THAT HAS CREPT IN, IN THE ORDER OF THE ASSESSING OFFICER, PURELY BASED ON MATERIAL FACTS ON RECORD. IN THE GARB OF AN APPLICATION FOR RECTIFICATION, IT IS NOT OPEN TO THE ASSESSING OFFICER TO SEEK RE- OPENING OF THE ORDER OF THE ASSESSING OFFICER BY RE-ARGUING THE WHOLE MATTER. U NLESS THERE IS A MANIFEST ERROR WHICH IS OBVIOUS, CLEAR AND IS EVIDENT, THE PROVISI ONS OF SEC. 154 OF THE ACT CANNOT BE RESORTED TO. WHAT CAN BE RECTIFIED U/S. 154 OF THE ACT IS A MISTAKE I.T.A. NO.215/COCH/2007 11 WHICH IS APPARENT AND PATENT. THE MISTAKE HAS TO BE SUCH FOR WHICH NO ELABORATE REASONS OR ENQUIRY IS NECESSARY. WHAT IS NOT PERMI TTED TO BE DONE BY THE STATUTE HAVING BEEN DELIBERATELY OMITTED TO CONFER REVIEW JURISDICTION ON THE ASSESSING OFFICER, CANNOT BE INDIRECTLY ACHIEVED BY RECOURSE TO RECTIFICATION U/S. 154 OF THE ACT. WHEN AN ERROR WAS FAR FROM SELF-EV IDENT, IT CEASES TO BE APPARENT ERROR. THE SO CALLED INACCURACIES OR WRONG CALCULATION OR WRONG LEVY OF INTEREST IN THE ORIGINAL ASSESSMENT ORDER SO AS TO CHARGE INTEREST U/S. 220(2), 245D(6A) AND WITHDRAWAL OF INTEREST UNDER SEC. 244( 1A) WERE NOT PATENT MISTAKES WHICH CONSTITUTE SINE QUA NON FOR EXERCISE OF POWER U/S. 154 OF THE ACT. THUS, IT IS SEEN THAT THE POWERS CONFERRED BY THE S TATUTE U/S. 154 ON THE ASSESSING OFFICER ARE VERY LIMITED AND ARE CIRCUMSC RIBED BY THE RESTRICTIONS MENTIONED THEREIN. IN THE CASE ON HAND, THE EARLIE R ASSESSMENT WAS THE SUBJECT MATTER OF ISSUE BEFORE THE SETTLEMENT COMMISSION AN D THE SETTLEMENT COMMISSION IN THIS CASE PASSED THE ORDER ON 29-06- 1993 UNDER SECTION 245D(4) OF THE ACT FOR WHICH AN APPLICATION WAS FILED BY TH E ASSESSEE BEFORE THE SETTLEMENT COMMISSION ON 28/08/1989. AT THAT TIME, THE ASSESSMENT WAS NOT COMPLETED AND THE IMPUGNED ASSESSMENT WAS COMPLETED ONLY ON 22-03-1991 WHICH IS A REASSESSMENT. 22. BEING SO, THE ISSUE DEALT BY THE ASSESSING OFFI CER IN THE RECTIFICATION ORDER U/S. 154 OF THE ACT CANNOT BE SAID TO BE A MISTAKE APPARENT FROM RECORD SINCE THE SAID VIEW HAS BEEN ARRIVED AT BY THE ASSESSING OFFICER ON AN EARLIER OCCASION I.T.A. NO.215/COCH/2007 12 AFTER DUE APPLICATION OF MIND TO THE FACTS AND CIRC UMSTANCES OF THE CASE AND THE RELEVANT MATERIAL ON RECORD. 23. FURTHER, IT IS WELL SETTLED THAT A MISTAKE APPA RENT FROM RECORD MUST BE AN OBVIOUS AND PATENT MISTAKE AND NOT SOMETHING WHICH CAN BE ESTABLISHED BY A LONG-DRAWN PROCESS OF REASONING ON POINTS ON WHICH THERE MAY BE CONCEIVABLY TWO OPINIONS. IN THE PRESENT CASE, THE ISSUE DEALT BY THE ASSESSING OFFICER IS BASED ON THE REASONING ON POINTS ON WHICH THERE MAY BE TWO VIEWS, AND IT CANNOT BE TAKEN UP BY THE ASSESSING OFFICER VIDE PR OCEEDINGS U/S. 154 OF THE ACT. IN OUR OPINION, THERE IS NO MISTAKE APPARENT ON REC ORD IN THE EARLIER ORDER OF THE AO SO AS TO TAKE UP THE ISSUES IN THE PROCEEDINGS U NDER SECTION 154 OF THE ACT. WE ARE INCLINED TO REVERSE THE ORDER OF THE CIT(A) ON THIS ISSUE AND THEREBY CANCEL THE ORDER PASSED BY THE AO UNDER SECTION 154 OF THE ACT. SINCE WE HAVE CANCELLED THE ORDER OF THE LOWER AUTHORITIES AS IT IS A DEBATABLE ISSUE, WE DECLINE TO ADJUDICATE THE OTHER GROUNDS RAISED BY THE ASSES SEE ON MERITS. 24. IN THE RESULT, THE APPEAL FILED BY THE ASSESSEE IS ALLOWED. PRONOUNCED ACCORDINGLY ON 05-09- 2014. SD/- SD/- (N.R.S.GANESAN) (CHANDRA POOJARI) JUDICIAL MEMBER ACCOUNTANT MEMBER PLACE: KOCHI DATED: 5/09/2014 I.T.A. NO.215/COCH/2007 13 GJ COPY TO: 1. SHRI A. YOUNUSKUNJU, YOUNUS CASHEW INDUSTRIES, V ADAKKEVILA, KOLLAM. 2. THE DEPUTY COMMISSIONER OF INCOME-TAX, CIRCLE-1, KOLLAM. 3. THE COMMISSIONER OF INCOME-TAX(APPEALS), TRIVAND RUM. 4. THE COMMISSIONER OF INCOME-TAX, TRIVANDRUM. 5. D.R., I.T.A.T., COCHIN BENCH, COCHIN. 6. GUARD FILE. BY ORDER (ASSISTANT REGISTRAR) ITAT, COCHIN