Commissioner of Income-tax Vs. Sunder Dass Setia - Court Judgment

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head note: income tax act, 1961 . rectification--debatable issue reduction of deduction computed and allowed under section 80j--the tribunal was right in law in holding that the mistake of not calculating the capital as on the first day of the previous year, when the assessment order was passed for the purpose of computation of deduction admissible under section 80j, is not a mistake apparent from record which can be rectified by the ao under section 154. as computation of relief under section 80j is a contentious one in which there can be two opinions. income tax act, 1961 section 154 income tax act, 1961 section 80j - sections 100-a [as inserted by act 22 of 2002], 110 & 104 & letters patent, 1865, clause 10: [dr. b.s. chauhan, cj, l. mohapatra & a.s. naidu, jj] letters patent appeal order of single judge of high court passed while deciding matters filed under order 43, rule1 of c.p.c., - held, after introduction of section 110a in the c.p.c., by 2002 amendment act, no letters patent appeal is maintainable against judgment/order/decree passed by a single judge of a high court. a right of appeal, even though a vested one, can be taken away by law. it is pertinent to note that section 100-a introduced by 2002 amendment of the code starts with a non obstante clause. the purpose of such clause is to give the enacting part of an overriding effect in the case of a conflict with laws mentioned with the non obstante clause. the legislative intention is thus very clear that the law enacted shall have full operation and there would be no impediment. it is well settled that the definition of judgment in section 2(9) of c.p.c., is much wider and more liberal, intermediary or interlocutory judgment fall in the category of orders referred to clause (a) to (w) of order 43, rule 1 and also such other orders which poses the characteristic and trapping of finality and may adversely affect a valuable right of a party or decide an important aspect of a trial in an ancillary proceeding. amended section 100-a of the code clearly stipulates that where any appeal from an original or appellate decree or order is heard and decided by a single judge of a high court, no further appeal shall lie. even otherwise, the word judgment as defined under section 2(9) means a statement given by a judge on the grounds of a decree or order. thus the contention that against an order passed by a single judge in an appeal filed under section 104 c.p.c., a further appeal lies to a division bench cannot be accepted. the newly incorporated section 100a in clear and specific terms prohibits further appeal against the decree and judgment or order of a single judge to a division bench notwithstanding anything contained in the letters patent. the letters patent which provides for further appeal to a division bench remains intact, but the right to prefer a further appeal is taken away even in respect of the matters arising under the special enactments or other instruments having the force of law be it against original/appellate decree or order heard and decided by a single judge. it has to be kept in mind that the special statute only provide for an appeal to the high court. it has not made any provision for filing appeal to a division bench against the judgment or decree or order of a single judge. no letters patent appeal shall lie against a judgment/order passed by a single judge in an appeal arising out of a proceeding under a special act. sections 100-a [as inserted by act 22 of 2002] & 104:[dr. b.s. chauhan, cj, l. mohapatra & a.s. naidu, jj] writ appeal held, a writ appeal shall lie against judgment/orders passed by single judge in a writ petition filed under article 226 of the constitution of india. in a writ application filed under articles 226 and 227 of constitution, if any order/judgment/decree is passed in exercise of jurisdiction under article 226, a writ appeal will lie. but, no writ appeal will lie against a judgment/order/decree passed by a single judge in exercising powers of superintendence under article 227 of the constitution. rajesh bindal, j.1. the following questions of law have been referred for the opinion of this court arising out of the order passed by the income-tax appellate tribunal, amritsar bench, amritsar (for short, 'the tribunal') in i.t.a. no. 647/chandi/79 dated december 20, 1980, in respect of the assessment year 1974-75:1. whether, on the facts and in the circumstances of the case, the income-tax appellate tribunal is right in law in holding that the mistake of not calculating the capital as on the first day of the previous year, when the assessment order was passed for the purpose of computation of deduction admissible under section 80j, is not a mistake apparent from record which can be rectified by the income-tax officer under section 154 ?2. whether, on the facts and in the circumstances of the case, the income-tax appellate tribunal is right in law in holding that the issue of computation of capital employed as on the first day of the previous year for the purpose of computation of relief under section 80j is a contentious one in which there can be two opinions and, therefore, there is no mistake apparent from record rectifiable by the income-tax officer ?3. in any case, whether, on the facts and in the circumstances of the case, the income-tax appellate tribunal is right in law in setting aside the income-tax officer's order under section 154 considering particularly the provisions of section 80j(1a) inserted by the finance (no. 2) act, 1980 with retrospective effect from april 1, 1972 ?2. briefly, the facts of the case are that the assessee filed its return of income which was assessed vide order dated december 31, 1976. while framing the assessment, the deduction under section 80j of the act was allowed to the tune of rs. 54,827. noticing that there was some error in the calculation of deduction, notice under section 154 of the income-tax act, 1961 (for short, 'the act') was issued and the amount of benefit was reduced to rs. 30,918 vide order dated may 6, 1978. this rectification was carried out in spite of objection raised by the assessee that the issue as on that date was debatable and two views were possible, accordingly, the rectification was not possible. in appeal, the commissioner of income-tax (appeals) for short, 'the cit(a)' upheld the order passed in rectification. however, before the tribunal, the assessee succeeded where the tribunal found that the contention of the assessee that the issue, as on the date of passing of rectification order, was debatable.3. counsel for the revenue was unable to point out any error in the view taken by the tribunal wherein it is held that the issue as on date was debatable and when two views on the same issue were available, the order of assessment cannot be held to be suffering from error or mistake apparent from record and, accordingly, the jurisdiction under section 154 of the act could not be exercised. endorsing the view taken by the tribunal, we answer the question referred against the revenue and in favour of the assessee.4. the reference is disposed of accordingly.