TaxTMI 
TaxTMI 
TaxTMI 
1984 (5) TMI 80
X X X X Extracts X X X X
X X X X Extracts X X X X
....the various objections raised by the assessee which were ultimately rejected by the Govt. of West Bengal in 1974. Inasmuch as the surplus land had been used by the company in the meanwhile, arrear rent was realized firm the company and was paid by the assessee company during the accounting period corresponding to assessment year 1976-77 amounting, in all, to Rs. 1,96,938. While making the original assessment, the ITO allowed the entire arrear rent paid as a business expenditure. Subsequently, the ITO felt that the allowance of the above amount was a mistake apparent from record and so he rectified the original assessment order in terms of section 154 after giving an opportunity to the assessee. The order of the ITO under section 154 is rath....
X X X X Extracts X X X X
X X X X Extracts X X X X
....October, 1967 an ex parte order was passed by the Govt. of West Bengal rejecting the review petition filed by the company. (vi) The company went in a writ petition under Art 226 of the Constitution against the aforesaid order and the Hon'ble High Court directed vide its order dated 27th November, 1972, that the company's review petition be again considered. (vii) The company made an application to the Govt. of West Bengal in terms of the aforesaid High Court order on 26th February, 1973. (viii) The said review application was rejected by the Govt. of West Bengal sometime in the beginning of 1974. 4. The previous year of the assessee company for assessment year 1976- 77 ended on 31st December, 1975. Therefore, according to the learned Co....
X X X X Extracts X X X X
X X X X Extracts X X X X
....d. One cannot be permitted to under take fresh investigation for the purpose of section 154 and bring fresh facts on record and determine on the basis of such facts that a mistake had occurred in the original assessment. May be that the original assessment order contained a mistake but every such mistake is not rectifiable under section 154. A mistake, in order to be amenable to action under. section 154, must be such as is apparent from record. What was not on record at the time of passing of the original assessment cannot be made part of the record by bringing it on record as a result of subsequent investigation. The order of the ITO does not clarify as to what were the facts on record before him at the time when he had passed the origina....
X X X X Extracts X X X X
X X X X Extracts X X X X
....is order but, as we have noted above, he gives no facts whatsoever in his order. The learned Commissioner (Appeals) has, of course, given the facts but he does not give a finding in his order that these facts were already on record at the time when the original assessment order was passed. From the tenor of his order it appears that all these facts have been discovered by the learned Commissioner (Appeals) but for the purpose of section 154 such discovery cannot be made use of for, facts thus discovered would not be part of the record as existed at the time of the original assessment and, therefore, the mistake in question would not be one apparent from the record as existed at the time of the original assessment. 8. Even on merits we do n....
X X X X Extracts X X X X
X X X X Extracts X X X X
....m the Addl. Dy. Commissioner, Darjeeling, to the Settlement Charge Officer, Darjeeling stating therein that the rents in question had not been determined with regard to the tea gardens situated in the District of Darjeeling and as such the tea gardens concerned could not avail themselves of the concession of payment of two instalments of rent. On the basis of this letter it was urged on behalf of the assessee that the determination of the rent of the assessee's tea estate was due sometime in 1975 and as soon as that was done the assessee had made the payment. Unless the rent was determined, so the argument ran, the assessee could not make the payment nor could the assessee anticipate the quantum of the liability. On the face of it, the asse....