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Abdul Rahiman Sait Vs. Income-tax Officer, Alleppey. - Court Judgment

LegalCrystal Citation
SubjectDirect Taxation
CourtKerala High Court
Decided On
Case NumberO.P. No. 345 of 1955 (E)
Reported in[1958]33ITR106(Ker)
AppellantAbdul Rahiman Sait
Respondentincome-tax Officer, Alleppey.
Cases ReferredSee N. Sundareswaran v. Income
Excerpt:
.....and shall within the like period rectify any such mistake which has been brought to his notice by an assessee. ' clause (2) then says :(2) the provision of sub-section (1) apply in like manner to the rectification of mistakes by the appellate tribunal. in the absence here of any exceptional case of this sort, it should follow that the order of the tribunal must, as between the parties to it, stand......before the appellate assistant commissioner.further appeal was taken by the assessee before the appellate tribunal, but that authority found it unnecessary to decide on the main question raised as to the power of the income-tax officer to re-compute the profits of the branches, under the commissioners remand order, in view to the acceptance by the assessee of a via media that the additions may be limited to rs. 12,000 as regards alleppey branch and rs. 2,500 as regards trivandrum branch and rs. 7,000 as originally, as regards kottayam branch. this order of the appellate tribunal, which gave 'the substance of justice' to the petitioner, was passed on 27th june, 1953.4. the income-tax officer subsequently discovered that his order of re-assessment fixing rs. 30,000 as estimate for.....
Judgment:

VARADARAJA IYENGAR, J. - This is a petition under article 226 of the Constitution field by an assessee under the Income-tax Act and calling in question a rectification order passed by the respondent, Income-tax Officer, Alleppy.

2. The petitioner was assessed for the year 1123 under the Travancore Act on 30th July, 1952, by the Income-tax Officer, by accepting the book version of the profits in the Alleppey and Trivandrum branches and adding a sum of Rs. 7,000 in respect of the Kottayam branch. A sum of Rs. 21,134 which was claimed as speculation loss in oil and pepper was also disallowed. After an unsuccessful appeal as regards the disallowance of the loss, before the Appellate Assistant Commissioner, the petitioner took the matter before the Commissioner under section 46(2) of the Travancore Act. The Commissioner, by his order dated 18th August, 1951, found that the set-off of the loss required re-investigation and so he set aside the assessment and remitted the matter with a direction to the Income-tax Officer 'to make a fresh assessment.'

3. Purporting to carry out the Commissioners directions, as to re-assessment, the Income-tax Officer reopened the book version of the Alleppey and Trivandrum branches and added his estimate of Rs. 30,000 and Rs. 7,500 thereto respectively. As regards the Kottayam branch he enhanced his original addition of Rs. 7,000 to Rs. 7,132. He also disallowed Rs. 21,134 claimed towards speculation loss. This order was confirmed in appeal before the Appellate Assistant Commissioner.

Further appeal was taken by the assessee before the Appellate Tribunal, but that authority found it unnecessary to decide on the main question raised as to the power of the Income-tax Officer to re-compute the profits of the branches, under the Commissioners remand order, in view to the acceptance by the assessee of a via media that the additions may be limited to Rs. 12,000 as regards Alleppey branch and Rs. 2,500 as regards Trivandrum branch and Rs. 7,000 as originally, as regards Kottayam branch. This order of the Appellate Tribunal, which gave 'the substance of justice' to the petitioner, was passed on 27th June, 1953.

4. The Income-tax Officer subsequently discovered that his order of re-assessment fixing Rs. 30,000 as estimate for addition to the Alleppey branch profit was based on an arithmetical mistake in arriving at the ex-mill cost on which a five per cent. estimate of gross profits was made so as to leave a balance of Rs. 38,107 for the approximation therefrom of the sum of Rs. 30,000. That is to say, instead of deducting Rs. 90,000 from the cost price of 33 lakhs and odd, towards transport charges, for getting the ex-mill cost, a sum of 9 lakhs was deducted instead. The Appellate Tribunals ratio of four per cent. more or less instead of five percent would then give not Rs. 12,000, but Rs. 30,662. The Income-tax Officer accordingly gave notice and proceeded to re-estimate the addition to be made at Rs. 30,662 in exercise of his jurisdiction by way of rectification of mistake in the assessment order of the Appellate Tribunal. It is this revised order dated 8th November, 1955, and filed as Exhibit F that is sought to be quashed by the writ motion herein.

5. The petition is resisted by the respondent on the ground that as the addition made by the Tribunal was not an ad hoc one but was arrived at after applying the gross profit found in comparable cases to the wrong turnover taken by the Income-tax Officer, it was within his competence to rectify the purely arithmetical mistake that had crept in.

6. Learned counsel for the petitioner attacked Exhibit F order on two grounds-firstly, that he had no jurisdiction under section 48 of the Act (Travancore) corresponding to section 35 of the Indian Act, to interfere in any manner with the order of the Tribunal, however mistake it might be, and, secondly, that the order of the Tribunal was intended to be in the nature of a rough and ready compromise as between the assesses on the one side and the Department on the other and was as such not amenable to a reopening even at the hands of the Tribunal and a fortiori by the Income-tax officer. In my judgment the petitioner is entitled to succeed on both the points. Now section 49, clause (1), apart from the provisos with which we are not concerned, reads as follows :

'(1) The Commissioner or Appellate Assistant Commissioner may at any time within four years from the date of any order passed by him in appeal or in the case of the Commissioner, in revision under section 46 and the Income-tax Officer may, at any time within four years from the date of any assessment order or refund order passed by him on his own motion rectify any mistake apparent from the record of the appeal, revision, assessment or refund, as the case may be, and shall within the like period rectify any such mistake which has been brought to his notice by an assessee.'

Clause (2) then says :

'(2) The provision of sub-section (1) apply in like manner to the rectification of mistakes by the Appellate Tribunal.'

The section, it is clear, empowers the various authorities, the Commissioner, Appellate Assistant commissioner, Income-tax Officer and the Appellate Tribunal, each to rectify its own mistakes and not that of any other or others. The corresponding rule which obtains under section 152 of the Code of Civil Procedure runs as follows :

'Clerical or arithmetical mistakes in judgments, decrees or order or errors arising therein from any accidental slip or omission may at any time be corrected by the court either of its own motion or on the application of any of the parties.'

And it has been uniformly held that wherever there is a confirmation, reversal or variation of the decree of the court of first instance in appeal from the decree, it is the appellate court alone that can amend the decree. See Mullas Civil Procedure Code, 12th Edition, page 462. There is no reason why the same principle should not apply as among the hierarchy of authorities under the Income-tax Act. The Income-tax Officers original order adding by estimate a sum of Rs. 30,000 to the book profits of the Alleppey branch, was without doubt, superseded by the order of the Appellate Assistant Commissioner confirming it in appeal and that appellate order itself got merged in the final order of the Appellate Tribunal varying it and fixing Rs. 12,000 for purpose of the addition. The only authority which could amend the order of the Tribunal on ground of apparent error must, on the above reasoning, be the Tribunal and Exhibit F order of the Income-tax Officer must in consequence go.

7. Taking up the second ground urged by learned counsel for petitioner, we observe that the Tribunal had before it the contention, not untenable, that the Income-tax Officer had no power to recompute the income from the Alleppey, Kottayam and Trivandrum branches in the light of the limitation contained in section 46 of the Travancore Act, corresponding to section 33A, but in contrast to section 33B of the Indian Act that the Commissioners order in revision ought not to be prejudicial to the assessee. See N. Sundareswaran v. Income-tax Commissioner. The Tribunal was, on the other side, oppressed by the fact that the result disclosed by the book were exceedingly low. So, When they suggested the adoption of levels in comparable cases and consequent addition of some lower figures, the assessee expressed agreement as regards the quantum of additional and withdrew the other contentions. And to formalise the matter, the Tribunal got from the assessee his consent in writing as follows :

' As proposed by the Tribunal I am agreeable to the reduction of Rs. 24,000 in the total income computed. This say be taken as the submission of my consent for the above reduction.'

It is difficult to escape the conclusion that there was here a process of give and take, and a settlement of the matter via media. If so, it ought not to be open to any one side to resile unilaterally. Analogy may, if necessary, be drawn from section 96(3) of the Code of Civil Procedure precluding appeal from decisions passed by court with the consent of parties. Such decisions could be set aside only on grounds which would invalidate an agreement such as misrepresentation, fraud or mistake and that again, by suit. In the absence here of any exceptional case of this sort, it should follow that the order of the Tribunal must, as between the parties to it, stand. That means, that the Income-tax Officer had no authority to modify the order by himself and on the ground ascribed.

8. I, therefore, issue a writ of certiorari as prayed for, quashing exhibit F order. The petitioner will get his costs from the respondents, with counsels fee Rs. 100.

Petition allowed.


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