Commissioner of Income Tax vs Kartar Singh and Co.

Rakesh Kumar Garg, J.—The Revenue has filed the present appeal u/s 260A of the Income Tax Act, 1961, challenging the order of the Income Tax Appellate Tribunal, Amritsar Bench, Amritsar, passed in I. T. A. No. 54(ASR)/2004, dated September 19, 2006 (annexure P-6) which has allowed the appeal of the assessee for the assessment year 1996-97. It has raised the following substantial questions of law:

Whether, on the facts and circumstances of the case, the learned Income Tax Appellate Tribunal was right in law in implying that Section 154(1A) of the Income Tax Act, 1961, which refers to an order passed u/s 154(1), also covers an order passed u/s 144 of the Income Tax Act, 1961?

Whether, on the facts and circumstances of the case, the learned Income Tax Appellate Tribunal was right in law in implying that interest and salary to members of an association of persons (AOP) were admissible, keeping in view the provisions of Section 184(5) of the Income Tax Act, 1961, even as they stood prior to amendment by the Finance Act, 2003, with effect from April 1, 2004?

Whether, on the facts and circumstances of the case, the learned Income Tax Appellate Tribunal was right in law in implying that the mistake in making the assessment as a firm and not as an association of persons (AOP) while resorting to the provisions of Section 144 is not a mistake of law apparent from the record, keeping in view the specific provisions of Section 184(5) of the Income Tax Act, 1961?

The brief facts giving rise to this appeal are as under:

The facts of the case are that the assessee filed the original return of income on October 31, 1996, in the status of a registered firm. However, while completing the assessment u/s 144, the Assessing Officer did not allow the deduction of interest and salary paid to the partners. The assessee filed an appeal before the Commissioner of Income Tax (Appeals) where the action of the Assessing Officer for not allowing the deduction in respect of interest and salary paid to the partners was, inter alia, challenged. It was argued before the Commissioner of Income Tax (Appeals) that the assessee was entitled to the deduction of interest and salary paid to the partners even though income was computed by applying the net profit rate.

Accepting the contention of the assessee, the learned Commissioner of Income Tax (Appeals) partly allowed the claim of the assessee for deduction of interest and salary paid to the partners. The Revenue challenged the order of the Commissioner of Income Tax (Appeals) in appeal before the Tribunal. The Income Tax Appellate Tribunal, vide its order dated November 13, 2003 (annexure A-3) in I. T. A. No. 135/ASR/2000 for the assessment year 1996-97 upheld the order of the Commissioner of Income Tax (Appeals) by relying on the judgment of the Rajasthan High Court in the case of Commissioner of Income Tax Vs. Jain Construction Co. and Others, held that the assessee was entitled to the deduction in salary and interest to the partners up to the limit specified in Section 40(b) of the Act.

Subsequently, the Assessing Officer noted that since the assessment was completed u/s 144 of the Act, the status of the firm was required to be taken as an association of persons within the meaning of Sub-section (5) of Section 184 of the Act. The Assessing Officer observed that since this was a mistake apparent from the record, the same required to be rectified. Accordingly, the Assessing Officer issued a notice u/s 154 on October 17, 2002, proposing to rectify the order u/s 154 and to treat the status of the assessee as an association of persons, in consequence thereof to disallow the interest and salary paid to the partners. The Assessing Officer issued a show-cause notice on October 17, 2002. In response to the notice, the assessee submitted a reply that the issue being debatable, the same fell outside the scope of the provisions of Section 154. However, the Assessing Officer rejected the objection and rectified the order u/s 154 and again disallowed the claim for deduction of interest and salary paid to the partners.

Being aggrieved, the assessee filed an appeal before the Commissioner of Income Tax (Appeals). It was submitted before the Commissioner of Income Tax (Appeals) that once the Tribunal had already decided the matter in favour of the assessee and against the Revenue, the order passed by the Assessing Officer u/s 154 was illegal and bad in law. It was further submitted that the issue involved in the case being debatable, the same fell outside the scope of the provisions of Section 154 of the Act. However, the learned Commissioner of Income Tax (Appeals) rejected the submissions of the assessee and held that since the assessment was completed u/s 144, the status of the assessee was required to be taken as an association of persons. This being a mistake of law apparent from the record, the Assessing Officer was held to be justified in rectifying the same u/s 154 of the Act.

Feeling aggrieved against the said order of the Commissioner of Income Tax (Appeals), the assessee filed an appeal before the Tribunal which was allowed by the Tribunal, vide order dated September 19, 2006. The relevant part of the order of the Tribunal is as under:

We have heard both the parties at some length and given our thoughtful consideration to the rival contentions, examined the facts, evidence and material placed on record. The undisputed facts of the case are that the assessment in this case was completed u/s 144 in the status of a registered firm. However, the assessee was not allowed the deduction of interest and salary paid to the partners because the income was computed by the net profit rate of 12.5 per cent. Admittedly, the Assessing Officer did not take into account the provisions of Sub-section (5) of Section 184 of the Act then in existence as per which the firm was to be assessed in the manner as an association of persons. It is also a fact that the issue for deduction of interest and salary paid to the partners was the subject-matter of dispute both before the Commissioner of Income Tax (Appeals) and the Income Tax Appellate Tribunal and the Tribunal, vide its order dated November 13, 2003 (supra) allowed the claim of the assessee for deduction of interest and salary paid to the partners and upheld the order of the Commissioner of Income Tax (Appeals). Thus, it cannot be said that the claim of the assessee for deduction of interest and salary paid to the partners was not considered by the Commissioner of Income Tax (Appeals) and the Income Tax Appellate Tribunal. As per the provisions of Sub-section (1A) of Section 154 where any matter has been considered and decided in any proceeding by way of appeal or revision, the authority passing such order can rectify such mistake only in respect of an issue which has not been considered by the appellate authority. It is true that the Tribunal did not consider the claim of the assessee for deduction of salary and interest paid to the partners in the light of the provisions of Section 184(5) of the Act in a case where the assessment was made u/s 144. Nevertheless the effect of finding of the Tribunal is that the assessee was allowed the deduction of interest and salary paid to the partners. Now, the Assessing Officer was not competent to rectify the assessment order which had the effect of nullifying/negating the order of the Tribunal. Thus, we are of the considered opinion that the order passed by the Assessing Officer u/s 154 was illegal, bad in law and without jurisdiction and is liable to be quashed on this point itself.

At the time of completing the assessment u/s 144 the Assessing Officer did not take into account the provisions of Section 184(5) in a case where the assessment was made u/s 144 perhaps for the reason that even on the merits, he did not allow the deduction of interest and salary paid to the partners. Nevertheless he completed the assessment in the status of a registered firm. Even otherwise, we find that as per the provisions of Sub-section (5) of Section 184, then existing in the statute for the relevant assessment year, the Assessing Officer could assess the firm in the same manner as an association of persons. However, there was no specific provision for disallowing salary and interest paid to the partners. The specific provision for disallowing salary and interest paid to the partners in a case where the assessment has been completed u/s 144 has been made applicable only with effect from April 1, 2004, by way of an amendment. Now, whether the deduction of interest and salary paid to the partners could be disallowed or not in a case where assessment was completed u/s 144 and more particularly where such claim of deduction has specifically been allowed by the Tribunal or not was highly debatable issue. As per the provisions of Section 154, the authority concerned is competent to rectify only such mistake of law or facts which are apparent from the record and all those issues which are debatable and involve prolonged arguments, debate where two conceivable views are possible fall outside the scope of the provisions of Section 154 of the Act. Reliance in this regard on the judgment of the Supreme Court in the case of T.S. Balaram, Income Tax Officer, Company Circle IV, Bombay Vs. Volkart Brothers, Bombay, . Therefore, even on this ground, the order passed by the Assessing Officer is liable to be quashed.

We have heard learned Counsel for the parties and perused the record.

The undisputed facts of the case are that the assessment in this case was completed u/s 144 in the status of a registered firm. However, the assessee was not allowed the deduction of interest and salary paid to partners because the income was computed by the net profit rate of 12.5 per cent. Admittedly, the Assessing Officer did not take into account the provisions of Sub-section (5) of Section 184 of the Act then in existence as per which the firm was to be assessed in the manner as an association of persons. It is also a fact that the issue for deduction of interest and salary paid to the partners was the subject-matter of dispute both before the Commissioner of Income Tax (Appeals) and the Income Tax Appellate Tribunal and the Tribunal, vide its order dated November 13, 2003 (supra) allowed the claim of the assessee for deduction of interest and salary paid to the partners and upheld the order of the Commissioner of Income Tax (Appeals). Thus, it cannot be said that the claim of the assessee for deduction of interest and salary paid to the partners was not considered by the Commissioner of Income Tax (Appeals) and the Income Tax Appellate Tribunal.

No doubt, the Tribunal while passing the order dated November 13, 2003, did not consider the claim of the assessee for deduction of salary and interest paid to the partners in the light of the provisions u/s 184(5) of the Act in a case where the assessment was made u/s 144 yet the effect of the finding of the Tribunal in the order dated November 13, 2003, is that the assessee was allowed the deduction of interest and salary paid to the partners. As per the provisions of Section 154, the authority concerned is competent to rectify only such mistake of law or facts which are apparent from the record and all those issues which are debatable and involve prolonged arguments and from the debate where two conceivable views are possible fall outside the scope of the provisions of Section 154 of the Act. In the present case, the Assessing Officer was not competent to rectify the assessment order which had the effect of nullifying the order dated November 13, 2003. At the time of completing the assessment u/s 144 the Assessing Officer did not take into account the provisions of Section 184(5) in a case where the assessment was made u/s 144 may be for the reason that even on the merits, he did not allow the deduction of interest and salary paid to the partners. Nevertheless, he completed the assessment in the status of a registered firm. Even otherwise, as per the provisions of Sub-section (5) of Section 184, then existing in the statute for the relevant assessment year, the Assessing Officer could assess the firm in the same manner as an association of persons as there was no specific provision for disallowing salary and interest paid to the partners. The specific provision for disallowing salary and interest paid to the partners in a case where the assessment has been completed u/s 144 has been made applicable only with effect from April 1, 2004, by way of an amendment. Thus, the issue whether the deduction of interest and salary paid to the partners could be disallowed or not in a case where the assessment was completed u/s 144 and more particularly where such claim of deduction has specifically been allowed by the Tribunal is highly debatable issue which falls outside the scope of the provisions of Section 154 of the Act.

Thus, in the light of the facts and circumstances of the case and the legal position discussed above, we are of the opinion that this appeal has no merit and no substantial questions of law arise for determination of this Court. Hence, the present appeal is dismissed being devoid of any merit.