TaxTMI 
TaxTMI 
2003 (1) TMI 27
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....e assessee-trust on a completely new ground made out suo motu without affording an opportunity to the assessee to have its say on the said new ground?" 2. The facts of all the consolidated references in brief are as follows: The Prajatantra Prachar Samity, Cuttack (hereinafter referred to as "the assessee"), a registered society, is a public charitable trust registered as such with the Commissioner of Income-tax, Orissa, under section 12A of the Income-tax Act, 1961 (hereinafter referred to as lithe Act"). The objective of the assessee-society are to promote literature, science, fine arts and infuse useful knowledge. It is engaged in publication of books, periodicals, journals and newspapers. For the assessment year 1985-86, it filed return of income on September 30, 1985, declaring loss of Rs. 15,76,888 before the Income-tax Officer, Ward-A, Circle-II, Cuttack. Notice being issued under section 142(1) of the Act, the assessee appeared with books of account and submitted that from April 1, 1984, it changed its method of accounting from mercantile to hybrid system of accounting. The Assessing Officer on examination of the books of account found that during the previous year the a....
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....ed of the matter with the following observations and directions: "With a view to have a satisfactory decision on all the questions arising herein, we have proposed the following course to which the counsel for both the parties have agreed. The course suggested is that while the assessee shall ask for a reference against the order dated January 19, 1990, the substantive order of the Tribunal dismissing the appellant's appeal, the Revenue shall ask for reference against the order of rectification dated December 13, 1990, and the substantive order of the Tribunal dated May 10, 1991. If such applications are filed within sixty days from today, the Tribunal shall refer the questions arising therein for consideration of the High Court. The above course is adopted in the particular facts of this case and with a view to overcome the several technical objections put forward by both parties. We make it clear that we intend no reflection upon the merits of the case of either party. All the questions which arise from the orders of the Tribunal aforesaid shall be open in such reference which may be heard together." 3. The litigation was going on a straight track. After the asses....
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....icers mentioned in section 154 of the Income-tax Act, 1961, to correct 'any mistake apparent from the record' is undoubtedly not more than that of the High Court to entertain a writ petition on the basis of an 'error apparent on the face of the record'. In this case it is not necessary for us to spell out the distinction between the expressions 'error apparent on the face of the record' and 'mistake apparent from the record'." 5. The Calcutta High Court (Sabyasachi Mukharji J., as he then was) in Jeewanlal (1929) Ltd. v. ITQ [1979] 118 ITR 946 after considering a number of decisions held as follows: "The position, therefore, is that in order to attract the jurisdiction under section 154 of the Act the mistake proposed to be rectified must be patent or apparent or obvious and on which there could not conceivably be two points of view. A mistake which has to be established by way of a process of reasoning or of investigation either on facts or by examination of the question of law on which there might conceivably be two views was not a mistake which came within the provisions of section 154 of the Act. But whether the mistake sought or prop....
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....ed for which it had no opportunity to object to its application. This, according to the Tribunal, is a clear and apparent error in the order, because it was nobody's case that the said section 11(4A) would be applicable to the assessee's case. In the substantive order of the Tribunal dated May 10, 1991, besides the above mistake (applicability or non-applicability of section 11(4A)), the Tribunal has given an additional ground of apparent mistake. That "mistake", according to the Tribunal is--the assessee for the first year of assessment, i.e., for the disputed year 1985-86, having adopted a hybrid system of accounting, the question of changing the method of accounting to adopt dubious way of avoiding tax does not arise. 9. Keeping in view the decisions referred to above and the finding recorded by the Tribunal in its orders dated December 13, 1990, and May 10, 1991, we have no hesitation to hold that the order of the Tribunal dated January 19, 1990, dismissing the assessee's appeal suffered from the mistake apparent from the record and, therefore, the application made under section 254(2) of the Act for rectification of the order dated January 19, 1990, was rightly ....