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Judgment
By The Court
The petitioner seeks reference of the following question to this Court :
"Whether on the facts and circumstances of the case, the Tribunal was right in law in cancelling the order passed under s. 13 of the Act by the Surtax Officer ?"
The year in question is 1982-83. In respect of the earlier assessment years statutory deduction was allowed by the Surtax Officer. In the present case also relief was granted, but thereafter the Surtax Officer issued notices under s. 13 of the Surtax Act read with s. 154 of the IT Act for rectifying the mistake alleged to have been committed. This rectification was objected to by the assessed. It was, inter alia, contended that the point in issue was a debatable one and it cannot be rectified by invoking the provisions of s. 113 of the Companies (Profits) Surtax Act, 1964. An appeal was filed against the order passed under s. 13. The CIT(A) did not accept this contention of the assessed and a second appeal was filed before the Tribunal. The Tribunal took note of the fact that the Supreme Court in T.S. Balaram, Income Tax Officer, Company Circle IV, Bombay Vs. Volkart Brothers, Bombay, , has categorically held that if a question was a highly debatable one then it cannot be said that there is a mistake committed in the framing of the original assessment which can be rectified either under s. 13 of the Surtax Act or s. 154 of the IT Act.
We find that the Tribunal has rightly invoked the decision of Volkart Brothers'' case (supra). It may be noted the relief which had been claimed was granted to the assessed in the earlier asst. yr. 1981-82 and in the subsequent assessment year also the Tribunal granted relief, namely, for the year 1983-84. It is, of course, correct that an application under s. 256(2) is still pending, nevertheless the very fact that for the asst. yr. 1983-84 on merits the case has been decided in favor of the assessed would show that the earlier decision of the Surtax Officer in granting relief to the assessed could not be said to give rise to a mistake apparent on the face of the assessment order. The point in issue is a highly debatable one which is quite evident from the fact that on merits for the earlier and subsequent years the point had been decided in favor of the assessed. Even if the decision to grant the deduction to the assessed may not have been in accordance with law, on the correct interpretation thereof, nevertheless it is evident that the question was a debatable one and the deduction once having been granted, the provisions of s. 13 or 154 of the IT Act could not be invoked. The decision of Volkart Brothers case (supra) was clearly applicable and, Therefore, answer to the question proposed is self-evident. The petition is dismissed.