Commissioner of Income Tax vs Sundaram Industries Ltd.

The question referred to us at the instance of the Revenue is :

Whether, on the facts and in the circumstances of the case, the Appellate Tribunal was right in holding that this is a case of mistake sought to be

rectified u/s 13 whereas the Income-lax Officer has only treated it as giving effect to the Appellate Assistant Commissioner''s order and applying

Rule 2 ?

The real question to be decided is as to whether the order made by the Income Tax Officer, after the matter has been sent back by the

Appellate Assistant Commissioner after he had accepted the assessee''s complaint regarding disallowance of certain other items, was one which

was within his jurisdiction as Income Tax Officer, as in his second order, the Income Tax Officer did not confine himself to matters which had been

dealt with by the Appellate Assistant Commissioner, but proceeded further to revise his own earlier order regarding other items by holding that

there was mistake apparent for the record which he could correct.

The alleged mistake pertains to the computation of the capital for the purpose of surtax by the application of Rule 2 in the Second Schedule to

the Companies (Profits) Surtax Act for making such computation. The Income Tax Officer, in his first assessment order dated February 28, 1970,

had determined the capital as Rs. 1,54,74,296. While doing so, he had allowed the assessee''s claim that the advance tax paid and the tax

deducted at source are not to be deducted. He revised his view after the matter was sent back by the Appellate Assistant Commissioner and

passed the second order on May 15, 1974, holding that those amounts should be deducted.

The question now for consideration is as to whether the mistake which was sought to be corrected was one which was apparent on the face of

the record.

Counsel for the assessee submitted that a reading of Rules 1 and 2, Second Schedule to the Companies (Profits) Surtax Act would not enable

one to immediately assert that the advance tax paid and tax deducted at source should be deducted from the computation of capital.

Having perused the rules and having heard counsel for the Revenue with regard to the scope of the terms ""reserve"" and ""provision"", we are

inclined to agree with counsel for the assessee. Though counsel for the Revenue is right in submitting that the ultimate order made by the Income

Tax Officer is correct in the sense that it has interpreted the rules correctly, nevertheless, it did involve a process of interpretation and it was not an

instance where the assessment order made earlier could be said to suffering from error which was ""apparent"" on the face of the record. The

existence of the mistake was something which had to be discovered and it involved a process of reasoning having regard to the language employed

in the Second Schedule and the decisions with regard to the scope of what is meant by ""reserve"", ""provision"" and ""fund"". We, therefore, answer

the question referred to us in favour of the assessee and against the Revenue.