The Commissioner Of Income Tax v. M/S.cello Writing Instruments

(-1-) IN THE HIGH COURT OF JUDICATURE AT BOMBAY ORDINARY ORIGINAL CIVIL JURISDICTION INCOME TAX APPEAL NO.195 of 2009 The Commissioner of Income Tax..Appellant Vs. M/s.Cello Writing Instruments & Containers P. Ltd. ..Respondent Mr. P.S. Sahadevan i/b. Ms. Anamica Malhotra, for the Appellant. Mr. A.K. Jasani, for the respondent. CORAM: F.I.REBELLO&R.S.MOHITE, JJ.DATED: 31ST MARCH, 2009 CORAM: F.I. R.S.MOHITE, JJ. DATED: 31ST MARCH, 2009 P.C.: P.C.: . Revenue is in Appeal on the following question:- "Whether on the facts and in the circumstances of the case the Hon’ble Tribunal was justified in law in holding that a debatable issue which cannot be a subject matter of rectification in proceedings u/s.154 of the Act, without appreciating the fact that assessee has not deducted depreciation from the eligible profit before claiming deduction u/s.80IB"? 2. For the assessment year 2000-2001 the A.O. exercised jurisdiction under Section 154 of the Income Tax Act, 1961. The issue pertained to claim of depreciation by an assessee. Aggrieved the (-2-) assessee preferred an appeal before the C.I.T. (A). The C.I.T. considering the arguments was pleased to hold that the provisions of Section 154 were only applicable in case of error apparent on the face of the record and in the instant case there was no such mistake apparent on the record warranting exercise of jurisdiction under Section 154. The matter was taken up in Appeal before I.T.A.T. The learned Tribunal was also pleased to hold that the rectification application is not maintainable. 3. At the hearing of this Appeal on behalf of the assessee the learned Counsel draws our attention to the order passed by this Court on 19th December, 2008 in Income Tax Appeal No.1282 of 2007 in the case of Plastiblends India Ltd. vs. Additional Plastiblends India Ltd. vs. AdditionalCommissioner of Income-tax where on finding Commissioner of Income-tax differences between two Division Benches of this Court the matter has been referred to larger Bench. 4. The very fact that this Court itself is divided on the issue, whatever be the merits of the matter, the A.O. atleast had no jurisdiction to exercise his jurisdiction under Section 154 . As and when there is conflict of opinion amongst the Benches the same cannot amount to error apparent on the face of the record. The Supreme Court in Assistant Commissioner of Income-tax vs. Saurashtra Assistant Commissioner of Income-tax vs. Saurashtra (-3-) Kutch Stock Exchange Ltd., (2008) 305 ITR 227 (SC) Kutch Stock Exchange Ltd., (2008) 305 ITR 227 (SC) Kutch Stock Exchange Ltd., (2008) 305 ITR 227 (SC) has been pleased to hold that a patent, manifest and self-evident error which does not require elaborate discussion of evidence or arguments to establish it, can be said to be an error apparent on the face of the record. The Supreme Court further was pleased to observe that to put it differently, it should be so manifest and clear that no court would permit it to remain on record. 5. Considering what has been discussed above, in our opinion, there was no mistake apparent on the face of the record. In the light of that the exercise of jurisdiction by the A.O. was without jurisdiction. Consequently, we find no merits in this Appeal, which is accordingly dismissed. (R.S.MOHITE, J.) (F.I.REBELLO,J.) (R.S.MOHITE, J.) (F.I.REBELLO,J.)