TaxTMI 
TaxTMI 
2005 (9) TMI 239
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....o the assessment year 1999-2000 the assessee received, on receipt basis, a sum of Rs. 3,36,575 representing outstanding fees for professional services rendered by him during the period prior to his elevation to the Hon'ble Calcutta High Court Bench with effect from 19-12-1994. The assessee included the above receipt in his return for the assessment year 1999-2000 under the head "Income from other sources" which was processed and an intimation under section 143(1)(a) was issued by the Assessing Officer accepting the returned income. The assessee thereafter by letter dated 12-2-2003 requested the Assessing Officer to rectify the said intimation under section 154 of the Act in the light of judgment of the Hon'ble Calcutta High Court in case of CIT v. Justice R.M. Datta [1989] 180 ITR 86, wherein it was held that the income received by the assessee prior to his elevation could not be taxed. 3. The Assessing Officer vide his order under section 154 dated 1-8-2003 rejected the application of the assessee with the observation that the outstanding fee for professional services was not taxable under section 28 but was taxable under section 56 of the Income-tax Act. The Assessing ....
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.... other sources". The CIT(A) further held that the Assessing Officer was competent to rectify the intimation under section 143(1) for the purpose of withdrawing the inclusion of the outstanding fee and directed the Assessing Officer to consider the rectification petition afresh in light of above observation. 7. The revenue is aggrieved with such order of ld. CIT(A) and has now come in appeal before us. 8. In appeal before us, the ld. Departmental Representative for the revenue, while defending the order of Assessing Officer and assailing the order of ld. CIT(A), has submitted that since the assessee has himself included the outstanding fee received by him in the return of income under the head "Income from other sources", which was processed by the Assessing Officer under section 143(1)(a) of the Act. Hence the application by the assessee to rectify the earlier intimation under section 154 in view of the decision of the Hon'ble Calcutta High Court in case of Justice R.M. Datta was rightly rejected by the Assessing Officer as such return could not be rectified by him as the assessee had not filed revised return and the Department did not commit any mistake while processing ....
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....mitted and such mistake can be rectified under section 154 of the Income-tax Act. The ld. counsel has further relied on sections 143(1)(ii) and 154(2) in support of his contention that the Assessing Officer has jurisdiction available with it to rectify such glaring mistake apparent from record. The ld. counsel has, therefore, submitted that the ld. CIT(A) was justified in taking care to the relevant provision of the Act and the decision of various High Courts and Hon'ble Supreme Court while deciding the issue in favour of assessee. Lastly it has also been pointed out by the ld. counsel for the assessee that even otherwise the tax effect in this case was less than Rs. 1 lakh which could well nullify the appeal of the revenue in view of the decision of the Hon'ble Bombay High Court in case of CIT v. Camco Colour Co. [2002] 254 ITR 565. 11. We have given our careful consideration to the rival submissions made before us and have perused the orders of tax authorities. We have also considered the various case laws relied by both the parties. The Assessing Officer in this case has rejected the application filed by the assessee for rectification of the intimation observing that ....
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....not, however, chargeable to tax under that head because under the corresponding computing section, i.e., section 10 of the Income-tax Act, 1922, an income received by an assessee, who kept his accounts on the cash basis, in an accounting year in which the profession had not been carried on at all was not chargeable to tax. Nor could the receipts be brought to tax under section 12 as "Income from other sources". As the heads of income were mutually exclusive and the receipts could be brought under the fourth head, they could not be brought under the residual head "Income from other sources". 14. Apart from the above judgment, the case law relied by the ld. A.R. in case of D.P. Sandhu Bros. Chembur (P.) Ltd. of the Hon'ble Supreme Court, also strengthened the above ratio laid down by the Hon'ble Calcutta High Court, wherein it was held that if a particular income could not be taxed under section 45 then it cannot otherwise be taxed under section 56 or it could not be taxed at all. 15. Coming to the jurisdictional aspect whether the Assessing Officer was competent under section 154 of the Act to rectify the mistake and we find weightage in the contention of the ld. A.R. ....