Judgment:
1. The 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 under Section 154 of the Act, without appreciating the fact that the assessee has not deducted depreciation from the eligible profit before claiming deduction under Section 80-IB
2. For the assessment year 2000-01 the Assessing Officer exercised jurisdiction under Section 154 of the Income-tax Act, 1961. The issue pertained to claim of depreciation by an assessee. Aggrieved the assessee preferred an appeal before the Commissioner of Income-tax (Appeals). The Commissioner of Income-tax 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 Income-tax Appellate Tribunal. 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 December 19, 2008 in Income-tax Appeal No. 1282 of 2007 in the case of Plastiblends India Ltd. v. Addl. CIT [2009] 178 Taxman 397 where on finding differences between two Division Benches of this Court the matter has been referred to larger Bench See : [2009] 318 ITR 352 (Bom) [FB].
4. The very fact that this Court itself is divided on the issue, whatever be the merits of the matter, the Assessing Officer at least 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 an error apparent on the face of the record. The Supreme Court in Asst. CIT v. Saurashtra Kutch Stock Exchange Ltd. [2008] 305 ITR 227 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 Assessing Officer was without jurisdiction. Consequently, we find no merits in this appeal, which is accordingly dismissed.