Ajit K. Sengupta, J.
1. M/s. The Purtabpore Co. Ltd., the assessed, was assessed to income-tax in the assessment year 1963-64. The assessee owns and runs a sugar mill on a seasonal basis. During the assessment year, the sugar mill was run for 132 days.
2. In the original assessment which was completed on March 19, 1968, the Income-tax Officer allowed the assessee extra shift allowance for the whole year at the rate of 50% of the normal depreciation allowed. Subsequently, the Income-tax Officer initiated proceeding under Section 154 of the Income-tax Act, 1961, and by his order dated the 14th March reduced the extra shift allowance from 50% of the normal depreciation allowance to 50% of 132/300 of such depreciation. The extra shift allowance as originally allowed was reduced by Rs. 29,887.
3. On an appeal preferred by the assessee, the Appellate Assistant Commissioner, following the order of the Tribunal in respect of an earlier assessment year in the case of the assessee, held that the assessee was entitled to extra shift allowance as originally allowed and allowed the appeal.
4. The Revenue preferred an appeal from the order of the Appellate Assistant Commissioner before the Income-tax Appellate Tribunal. It was submitted on behalf of the Revenue before the Tribunal that the controversy had been concluded by a decision of this court in the case of Ganesh Sugar Mitts Ltd. : 73ITR395(Cal) , which held on similar facts that a seasonal factory would not be entitled to extra shift allowance at the same rate as a factory which had run on a regular basis for the whole year. It was held by the Tribunal that in the absence of a decision of the Supreme Court, the issue could not be held to be free from doubt. The appeal of the Revenue was dismissed.
5. On an application of the Revenue under Section 256(2) of the Act, this court directed the Tribunal to refer the following question as a question of law for the opinion of this court :
'Whether, on the facts and in the circumstances of the case, the Tribunal was right in holding that there was no mistake apparent from the record which could be rectified under Section 154 of the Income-tax Act, 1961?'
6. Learned advocate for the Revenue contended at the hearing that a mistake was committed at the time of the original assessment in allowing the assessee the extra shift allowance claimed at the same rate as that allowed to a factory which worked regularly for the whole year. This was a mistake, apparent from the record. Law as settled by the subsequent decision of this court was the law which should have been held to have been prevailing at all material times and the Income-tax Officer was justified in rectifying the original assessment under Section 154 of the Act.
7. Learned advocate for the assessee contended to the contrary and submitted that in the facts of the instant case, there was no mistake apparent from the record as at the point of time when the Income-tax Officer sought to rectify the mistake. The point at issue was highly debatable. The question has not uptill now been considered and decided by the Supreme Court. Different Benches of the Tribunal had taken different views on the issue and references were made both at the instance of the Revenue as also of the assessee resulting in different decisions of different courts. It was submitted that the decision of this court in Ganesh Sugar Mills Ltd. : 73ITR395(Cal) by itself could not be the justification for the Income-tax Officer to invoke his jurisdiction under Section 154 of the Act.
8. Learned advocate for the assessee relied on the following decisions of this court--CIT v. New Central fate Mills Co. Ltd. : 105ITR262(Cal) ; Jeewanlal (1929) Ltd. v. ITO : 118ITR946(Cal) and Stadmed Private Limited v. CIT : 140ITR361(Cal) , for the proposition that where a decision was on a debatable point of law with likelihood of two possible views, a mistake apparent on the record could not be inferred. Even where an order was passed by mistake, if the rectification thereof involved examination of two possible views, arguments and consideration of reported decisions, it cannot be said that such a mistake was one apparent on the face of the record within the meaning of Section 154.
9. The decision of the Supreme Court in Balaram, ITO v. Volkart Bros. : 82ITR50(SC) , was also cited for the proposition that a mistake apparent from the record must be obvious and not one to be established by a long drawn process of reasoning involving interpretation of the relevant provision of the rule or more than one solution.
10. Learned advocate for the assessee drew our attention to a Full Bench decision of the Allahabad High Court to show that a Full Bench had to be constituted to decide the issue as regards allowance of extra shift depreciation allowance as there was a conflict of opinion in that court. The decision of the Full Bench of the Allahabad High Court is in the case of Dhampur Sugar Mills Ltd. v. CIT : 126ITR648(All) . The Andhra Pradesh High Court has also referred this question to a Full Bench as there was no pronouncement of the court one way or the other on this question affecting a large number of seasonal factories. The said decision of the Full Bench is in the case of Addl. CIT v. Sarvaraya Sugars Ltd. : 129ITR538(AP) [FB].
11. Finally, learned advocate for the assessee referred to a decision of this court in Jiyajeerao Cotton Mills Ltd. v. ITO : 130ITR710(Cal) , where it was held by this court that where there is a divergence of views which ultimately was settled by the Supreme Court, it cannot be said that there was no debate or doubt on the question prior to the decision of the Supreme Court. It was submitted that unless this issue was finally decided by the Supreme Court, the matter remained debatable.
12. Learned advocate for the Revenue relied on a decision of this court in Ganesh Sugar Mills Ltd. v. CIT : 73ITR395(Cal) . In this case, a Division Bench of this court held that the maximum of the extra depreciation allowable in the case of extra shift allowance for a seasonal factory had to be allowed in proportion to the actual number of days for which the plant and machinery had worked extra shift. Three hundred days was the normal number of working days in a year. The proportion had to be calculated on the actual number of working days to 300. The judgment was delivered on May 9, 1968. The same view has been taken by this court in the case of Anantapur Textile Ltd. v. CIT : 116ITR851(Cal) .
13. We have considered the rival contentions. The Income-tax Officer passed the order under Section 154 of the Act on March 14, 1969, when this court in the case of Ganesh Sugar Mills Ltd, : 73ITR395(Cal) , held that the maximum of the extra depreciation allowable in the case of extra shift allowance for a seasonal factory had to be allowed in proportion to the actual number of days for which the plant and machinery had worked extra shift. Strangely enough, the Appellate Assistant Commissioner, without considering the said decision of this court, followed the order of the Tribunal for the earlier assessment year where the Tribunal took a contrary view. The Tribunal after holding that the decision of this court in Ganesh Sugar Mills Ltd. : 73ITR395(Cal) is 'on all fours' and 'the assessee is entitled to extra shift allowance as was done by the Income-tax Officer under his order of rectification dated March 14, 1969', considered an alternative contention and held that in the absence of a Supreme Court decision on the point, it cannot be said that the point at issue was free from doubt. The Tribunal, therefore, held that the Income-tax Officer could not withdraw the excess of extra shift allowance under Section 154. We are, however, unable to accept this reasoning of the Tribunal. After the decision of this court was rendered, there was a mistake apparent from the record of assessment which the Income-tax Officer rectified under Section 154. When the said rectification was made in March, 1969, no decision of any other High Court taking a contrary view was referred to the Income-tax Officer or for that matter to the Appellate Assistant Commissioner or the Tribunal. All the High Courts have since held uniformly that extra shift allowance for a seasonal factory had to be allowed in proportion to the actual number of days for which plant and machinery had worked extra shift. The language of the provision is unambiguous. In this case, the Income-tax Officer committed a mistake in the original assessment by misreading the relevant rule. That mistake was rectified by him after the judgment in the case of Ganesh Sugar Mills Ltd. : 73ITR395(Cal) , was rendered by this court. At the material time, there was no conflict of judicial opinion. The validity of the action of the Income-tax Officer must be judged from the facts as they were at the time when the action was taken. It is not the case of the assessee that at the material time there was any conflict of any judicial opinion on the relevant rule between different High Courts or the matter was pending before the Supreme Court to be resolved and settled by the Supreme Court. On the facts and circumstances of this case, we are unable to hold that there was any debate or doubt or conflict as regards the application of the relevant rule at the material time when the rectification was made. We are, therefore, of the view that the Tribunal fell in error in holding that in the absence of the Supreme Court decision on the point it cannot be said that the point at issue was free from doubt.
14. For the reasons aforesaid, we answer the question in this reference in the negative and in favour of the Revenue.
15. There will be no order as to costs.
Dipak Kumar Sen, J.
16. I agree.