{"id":217510,"date":"1975-03-04T00:00:00","date_gmt":"1975-03-03T18:30:00","guid":{"rendered":"https:\/\/www.legalindia.com\/judgments\/mahendra-mills-ltd-vs-sheri-p-b-desai-appellate-on-4-march-1975"},"modified":"2018-10-23T03:56:08","modified_gmt":"2018-10-22T22:26:08","slug":"mahendra-mills-ltd-vs-sheri-p-b-desai-appellate-on-4-march-1975","status":"publish","type":"post","link":"https:\/\/www.legalindia.com\/judgments\/mahendra-mills-ltd-vs-sheri-p-b-desai-appellate-on-4-march-1975","title":{"rendered":"Mahendra Mills Ltd vs Sheri P. B. Desai, Appellate … on 4 March, 1975"},"content":{"rendered":"
Supreme Court of India<\/div>\n
Mahendra Mills Ltd vs Sheri P. B. Desai, Appellate … on 4 March, 1975<\/div>\n
Equivalent citations: 1975 AIR 910, \t\t 1975 SCR (3) 846<\/div>\n
Author: R S Sarkaria<\/div>\n
Bench: Sarkaria, Ranjit Singh<\/div>\n
           PETITIONER:\nMAHENDRA MILLS LTD.\n\n\tVs.\n\nRESPONDENT:\nSHERI  P.  B.  DESAI, APPELLATE\t ASSISTANT  COMMISSIONER  OF\n\nDATE OF JUDGMENT04\/03\/1975\n\nBENCH:\nSARKARIA, RANJIT SINGH\nBENCH:\nSARKARIA, RANJIT SINGH\nKRISHNAIYER, V.R.\nGUPTA, A.C.\n\nCITATION:\n 1975 AIR  910\t\t  1975 SCR  (3) 846\n 1975 SCC  (4)\t93\n\n\nACT:\nIncome-Tax    Act,   1961--S.\t35--Scope   of--Record\t  of\nappeal--Meaning of\n\n\n\nHEADNOTE:\nin  the course of assessment of the income of  the  assessee\nfor  the  year\t1959-60\t the  Income-tax  Officer  found   a\ndiscrepancy  between the value of its ,closing\tstock  which\nwas shown in its books as Rs. 5.89 lakhs and the records  of\nthe State Bank in which it was shown as Rs. 8.04 lakhs.\t The\nIncome-tax Officer rejected the explanation of the  assessee\nregarding  the discrepancy and worked out the closing  stock\nat Rs. 8.04 lakhs.  When the assessee's appeal against\tthis\norder  was  pending  before  the  Tribunal,  the  Income-tax\nOfficer\t took up for assessment the income of  the  assessee\nfor  the assessment year 1960-61.  Rejecting the  contention\nof  the assessee that the opening stock for  the  assessment\nyear should be taken to be Rs. 8.04 lakhs but the Income-tax\nOfficer took it as Rs. 5.89 lakhs.  On Appeal the  Appellate\nAssistant  Commissioner\t accepted  the\tcontention  of\t the\nassessee  and  reversed\t the  decision\tof  the\t  Income-tax\nOfficer.  Neither party appealed against this order.  Later,\nhowever,  the  Tribunal\t accepted  the\texplanation  of\t the\nassessee  in regard to the discrepancy in the closing  stock\nfor  the assessment year 1959-60 and held that\tthe  closing\nstock  should  be taken as Rs. 5.89 lakhs as  shown  in\t its\nbooks.\tThereupon the Income-tax Officer moved the Appellate\nAssistant Commissioner to rectify his order relating to\t the\nassessment year 1960-61 and bring it in conformity with\t the\nTribunal's order.\nThe  Appellate Assistant Commissioner accordingly passed  an\norders\nThe assessee then moved the High Court under Art. 226 of the\nConstitution   alleging\t  that\t the   Appellate   Assistant\nCommissioner  had  overstepped\tthe  jurisdiction  conferred\nunder S. 35 of the Income-tax Act.  The High Court dismissed\nthe petition.\nOn  appeal  to this Court it was contended  that  the  words\n'record of appeal in s. 35 of the Act would mean the  record\nfor the assessment year 1960-61 and not the entire record of\nthe assessee relating to the earlier years as also ,of later\nyears;\tand (2) the Appellate Assistant Commissioner had  no\njurisdiction  to  rectify  his\tdecision  by  referring\t  to\nsomething   which   took   place  for\tYears\tafter\tthat\ndecision.Dismissing the appeal.\nHELD  : (1) For the Purpose of ascertaining the\t true  stock\nposition  the record of the assessment for  assessment\tyear\n1959-60,   including   the  Tribunals  decision,   was\t not\nextraneous  or\tirrelevant to the record of the\t appeal\t and\ncould legitimately be looked into by the Appellate Assistant\ncommissioner  for  the purpose of  correcting  the  mistake.\n[852C]\nSince the closing stock of one assessment year furnishes the\nfigure\tof  the\t opening stock for the\tsucceeding  year  it\nfollows\t that  the  record showing  talk  closing  stock  of\nassessment  year  1959-60  formed a  part  of  the  evidence\nrelevant to the assessment for assessment year 1960-61.\t  To\nthe  extent  of ascertaining the closing and  opening  stock\npositions,  the two assessments telescoped into each  other.\nThe  Tribunal's finding that the value of the  closing\ttook\nfor  assessment\t year 1959-60 had  completely  replaced\t the\nIncome-tax  Officers  finding in regard to  that  fact\twith\neffect\tfrom  the  date of the\tIncome-tax  Officer's  order\nrelating to the assessment year 1959-60.  If the  income-tax\nOfficer's tax Officer's\n847\norder  relating to assessment year 1959-60 was\trelevant  to\nand  part of the 'record of appeal' the Tribunal's  decision\nwhich  superseded  that finding was. equally so\t within\t the\ncontemplation of s. 35 of the Act. [851G-H]\n(2)  The  finding  of the Tribunal as to  the  voluation  of\nstock,\t although  recorded  subsequent\t to  the   appellate\ndecision  of the Appellate Assistant Commissioner, could  be\ntaken as forming part of the record of the appeal and  taken\ninto account for the purpose of correcting the mistake under\ns.  35,\t as  to\t the value of  the  opening  stock  for\t the\nassessment year 1960-61, apparent from that record. [853B]\nCommissioner  of Income-tax v. Khem Chand Ramdas  61  I.T.R.\n414-L.R. 65 I.A. 236, referred to.\nM\/s.   Maharan\tMills  (Private)  Ltd.\tv.  The\t  Income-tax\nOfficer,  Porbandar<\/a>  [1959] Suppl. 2 S.C.R. 547\t and  M.  K.\nVenkatachalam  v.  Bombay Dyeing & Mfg.\t  Co.  Ltd.,<\/a>  [1959]\nS.C.R. 703. followed.\n(3)  There  is no room for apprehension that the  income-tax\nauthorities, under the guise of correcting mistakes  lightly\nreopen\tassessments long past and closed and thus  introduce\nan element of instability in the administration of the\tAct.\nA  decision  is\t a precedent on its own\t facts.\t  Each\tcase\npresents its own features The Income-tax authorities and the\nTribunals  are supposed to apply the ratio of a decision  to\nthe facts of particular cases with due care and discernment,\nhearing\t in mind the restricted scope of their\tjurisdiction\nunder s. 35 and the object for which it is conferred. [853F]\n\n\n\nJUDGMENT:\n<\/pre>\n
CIVIL  APPELLATE  JURISDICTION : Civil Appeal  No.  1793  of
\n1970.\n<\/p>\n
From  the  judgment and order dated 24th June, 1970  of\t the
\nGujarat High Court in Special Civil Application No. 1259  of
\n1969.\n<\/p>\n
S.   T. Desai and I. N. Shroff, for the appellant.
\nT.   A. Ramachandran and S. P. Nayar, for the respondents.
\nThe Judgment of the Court was delivered by
\nSARKARIA,  J.  This appeal directed  against  the  judgment,
\ndated  24.6.1970,  of  the High Court of  Gujarat  raises  a
\nquestion  in  regard to the interpretation of  s.35  of\t the
\nIndian Income-tax Act, 1922 (for short, called the Act).
\nThe  assessee  is  a  Limited  Company\twhich\tmanufactures
\ntextiles in its Mill.  For the assessment year 1959-60,\t the
\nassessee showed in its books the value of its closing  stock
\nat Rs. 5,89,439\/-.  The Income-tax officer in the course  of
\nthe  assessment,  detected that there was  some\t discrepancy
\nbetween the value of the stock of cotton shown in the  books
\nof  the assessee and the records of the State Bank of  India
\nwith  which  it had hypothecated that stock.   The  assessee
\ntried to explain away this discrepancy by saying that it had
\ngiven  an incorrect figure of its stock to the Bank  with  a
\nview to obtain higher amount of over-draft.  The  Income-tax
\nOfficer\t rejected this explanation and added Rs.  2,14,682\/-
\nto  the\t value\tof  the\t stock\tso  that  according  to\t his
\nassessment, the closing stock for the assessment year  1959-
\n60  worked  out to Rs. 8,04,121\/-.  Having failed  in  first
\nappeal\tbefore\tthe Appellate  Assistant  Commissioner,\t the
\nassessee preferred a second appeal to the Tribunal.\n<\/p>\n
848<\/span><\/p>\n
Pending\t the  appeal  before the  Tribunal,  the  Income-tax
\nOfficer\t took up the assessment of its income for  the\tnext
\nassessment  year i.e. 1960-61.\tThe assessee contended\tthat
\nopening\t stock for the assessment year 1960-1961  should  be
\ntaken  as Rs. 8,04,121\/-.  The Income-tax  Officer  rejected
\nthis  contention  and  took up the opening  stock  for\tthat
\nassessment  year  at  Rs.  5,89,439\/-  without\tmaking\t the
\naddition  of  Rs.  2,14,682\/-.\tAgainst this  order  of\t the
\nIncome-tax  Officer, the assessee went in appeal before\t the
\nAppellate Assistant Commissioner who, on 30.6.1965, accepted
\nthe same, despite opposition from the Income-tax Officer who
\nhad  personally appeared there to defend his order and\theld
\nthat  the opening stock for the assessment year 19601961  be
\ntaken  at  Rs. 8,04,121\/-.  Neither party  appealed  against
\nthis order before the Tribunal.\n<\/p>\n
On  January  22, 1969, the Tribunal allowed  the  assessee’s
\nappeal\treferred to above relating to the  assessment  year,
\n1959-60,  and accepted the assessee’s explanation about\t the
\ndiscrepancy  relating  to the value of\tstocks\tbetween\t its
\naccount-books and those of the Bank.  The Tribunal  directed
\nthat  the addition of Rs. 2,14,682\/- made by the  Income-tax
\nOfficer to the closing stock relating to the assessment year
\n1959-60\t be  deleted.\tThus, according\t to  the  Tribunal’s
\ndecision, the closing stock for the assessment year  1959-60
\n(which\twould also be the opening stock for  the  succeeding
\nyear)  was  Rs.\t 5,89,439\/  as shown in\t the  books  of\t the
\nassessee.\n<\/p>\n
Thereafter  on March 26, 1959, the Income-tax Officer  moved
\nthe  Appellate\tAssistant Commissioner requesting  that\t the
\nlatter’s  appellate order, dated 30.6.1965, relating to\t the
\nassessment   year  1960-61  be\trectified  and\tbrought\t  in
\nconformity with the Tribunal’s order.\n<\/p>\n
The  Appellate Assistant Commissioner then issued  a  notice
\nunder  s.154 of the Act to, the assessee to show  cause\t why
\nthe appellate order, dated 30.6.1965, be not rectified under
\ns.35  of the Act.  Despite objection from the  assessee,  on
\n28.6.1969,  the Appellate Assistant Commissioner  passed  an
\norder for rectifying his decision dated 30.6.1965 The  order
\nof rectification runs thus :\n<\/p>\n
\t      record of appeal as pointed out in the I.T.0’s
\n\t      letter  dated  26.3.69 mentioned\tabove.\t The
\n\t      appellate\t order\twhich is now  sought  to  be
\n\t      rectified,   was\t passed\t on   30.6.65.\t The
\n\t      rectification    is   therefore\t in    time.
\n\t      Accordingly I direct that the value of opening
\n\t      stock  for  the  A.Y. 60-61 be  taken  at\t Rs.
\n\t      5,89,439\/-,  being equal to the value  of\t the
\n\t      closing  stock determined by the Tribunal\t for
\n\t      the  A.Y. 1959-60.  Therefore, the  relief  of
\n\t      Rs.  2,14,682\/- given to the assessee  in\t the
\n\t      original\tappellate  order,  dated  30.6.1965,
\n\t      stands cancelled.\t The ITO is directed to give
\n\t      effect to this order.”\n<\/p><\/blockquote>\n
The  assessee  then impugned this order by a  writ  petition
\nunder  Article\t226 of the Constitution before\tthe  Gujarat
\nHigh  Court,  on  the ground that  the\tAppellate  Assistant
\nCommissioner  had overstepped the jurisdiction conferred  on
\nhim  under  s.35 of the Act.  The High Court  dismissed\t the
\npetition.  Hence this appeal.\n<\/p>\n
\t\t\t    849<\/span><\/p>\n
Before\tthe High Court, the assessee raised two\t contentions
\nwhich  have been re-agitated before us.\t They are : (i)\t The
\nAppellate Assistant Commissioner had no jurisdiction to make
\nthe  impugned  order because there was no  mistake  apparent
\n“from the record of the appeal” within-the contemplation  of
\ns.35 of the Act. (ii) Assuming that the words “record of the
\nappeal’\t in  s.35 were comprehensive enough to\tinclude\t the
\nrecord of other related proceedings, the Appellate Assistant
\nCommissioner had no jurisdiction to rectify his decision dt.
\n30.6.65,  by  referring\t to some thing\twhich  actually\t and
\nfactually took place four years after that decision.
\nElaborating  his contentions, Mr. Desai submits that in\t the
\ncontext\t of  the  present case, the  words  “record  of\t the
\nappeal”\t in  s.35 would mean the record for  the  assessment
\nyear 1960-61 which the Appellate Assistant Commissioner\t had
\nactually before him at the time of hearing of the appeal and
\nnot  the  entire  record of the\t assessee  relating  to\t the
\nearlier years and a fortiori of later years.  Such appellate
\nrecord,\t it is mentioned, had no apparent error which  could
\nbe  rectified  under s.35. The argument proceeds,  that\t the
\norder of the Tribunal for the assessment year 1959-60,\tmade
\non  22.1.1969-which gave rise to the  mistake-was  something
\nsubsequent  and extraneous and could not, by any stretch  of
\nlanguage,  be  called a part of the “record of\tthe  appeal”
\nrelating  to the assessment year 1960-61.  Support for\tthis
\ncontention  has\t been sought from a decision of\t the  Mysore
\nHigh  Court  in\t Ganapathi  Subbaraya  Hegde  v.  State\t  of
\nMysore,(1)  which proceeds on an interpretation of  s.37  of
\nthe Mysore Agricultural Income-tax Act.\t Learned Counsel has
\ntried  to  distinguish the, decision of this Court  in\tM\/s.
\nMahrana\t Mills\t(Private) Ltd. v.  The\tIncome-tax  Officer.
\nPorbandar<\/a>(2) on the two-fold ground (i) that that was a case
\nof  depreciation in which the written-down value had  to  be
\ncalculated  with reference to the record of past years,\t and\n<\/p>\n
(ii)  unlike  the  present case, there,\t the  error  was  in
\nexistence and apparent from the record of the appeal at\t the
\ntime of its decision. it is argued that-Maharana Mills’ case
\n(supra)\t was  not one where the mistake was  rectified\twith
\nreference   to\tsomething  happening  subsequently  to\t the
\noriginal  decision of the Appellate Assistant  Commissioner.
\nAttempt has also been made to distinguish the Privy  Council
\ndecision  in  Commissioner  of\tIncome-tax  v.\tKhem   Chand
\nRamdas(3)  on the ground that there the mistake\t hid  become
\napparent as a result of the cancellation of registration  of
\nthe assessee firm in revision under s. 33 of the Act.
\nAs  against this, Mr. Ramachandran, learned Counsel for\t the
\nRevenue submits that the “record of the appeal” spoken of in
\ns.35  is the entire evidence which could be looked  into  by
\nthe Appellate Assistant Commissioner for the purpose of\t the
\nappeal.\t Since the closing stock of one year and the opening
\nstock  of the succeeding year must necessarily be the  same.
\nthe record of the assessment year 1959-60, was also relevant
\nand  therefore, a part of the record of the  appeal  arising
\nout of the assessment for 1960-61.  It is further  canvassed
\nthat the
\n(1) 84 I.T.R. 523.     (2)  [1959] Supp 2 S.C.R. 547.
\n(3) 61, I. T. R. 414- L.R. 651.\n<\/p>\n
8–564SCI\/75
\n850<\/span>
\nTribunal had for the I.T.O’s finding as to the value of\t the
\nclosing\t stock\tfor the assessment year\t 1959-60  being\t Rs.
\n8,04,121\/- completely substituted its own finding  regarding
\nsuch value being Rs. 5,89, 439\/-, with effect from the\tdate
\nof  I.T.O’s  order, and thus the  Tribunal’s  order,  though
\npassed subsequently, had, with retrospective effect,  become
\na  part\t of  the  record of the,  appeal  relating,  to\t the
\nassessment year 1960-61, which could legitimately  be looked
\ninto by the Appellate Assistant Commissioner for the purpose
\nof ascertaining and rectifying the mistake in his  appellate
\ndecision.  Reliance has been placed on the decisions of this
\nCourt  in  Maharana Mills (P) Ltd.  v.\tIncome-tax  Officer,
\nPorbandat<\/a>  (supra) and that of the Privy Council in  Commis-
\nsioner of Income-tax v. Khemchand Ramdas (supra).
\nThe material part of s.35 is in these terms
\n\t      “35(1).\t The   Commissioner   or   Appellate
\n\t      Assistant Commissioner may, at any time within
\n\t      four  years from the date of any order  passed
\n\t      by  him  in  appeal  or in  the  case  of\t the
\n\t      Commissioner in revision under Section 33A and
\n\t      the  Income-Tax  Officer\tmay,  at  any  time,
\n\t      within  four  years  from\t the  date  of\t any
\n\t      assessmet order of refund order passed by\t him
\n\t      on his own motion rectify any mistake apparent
\n\t      from  the\t record\t of  the  appeal,  revision,
\n\t      assessment  or refund as the case may be,\t and
\n\t      shall within the like period rectify any\tsuch
\n\t      mistake  which has been brought to his  notice
\n\t      by an assessee. . . ”\n<\/p>\n
The crucial words are those that have been underlined.
\nThe interpretation of the words “record of appeal” is not  a
\nmatter\twhich is res integra.  It came up for  consideration
\nbefore\tthis  Court  in Maharana Mills\tcase  (Supra).\t The
\nappellant   therein  (hereinafter  called  the\tMills)\t was
\nassessed  to income-tax for the assessment year 1953-54\t and
\nby  an order of June 30, 1955, the I.T.O. allowed  deprecia-
\ntion  under  S. 10(2) (vi) of the Act in the amount  of\t Rs.
\n3,48,105\/-.    On  August  8,  1955,  the  Mills   made\t  an
\napplication before the I.T.O. for rectification of the order
\nunder  s.35  of\t the Act pointing out  certain\tmistakes  in
\ncalculations  of  the depreciation amount.   The  Income-tax
\nOfficer by his order, dated February 27, 1956, corrected the
\n“written  down\tvalue” of the different\t properties  of\t the
\nMills and determined the total allowable depreciation to  be
\nRs.-  1,94,074\/-.   The\t Mills\tchallenged  this  order\t  of
\nrectification  on  several grounds two of  them,  which\t are
\nmaterial  for our purpose, were : (a) that the provision  of
\ns.35  under which the Income-tax Officer had acted, was\t not
\nmeant for the purpose of making corrections in written\tdown
\nvalues, the correct provision being s.34 which\tspecifically
\nrefers to excessive depreciation, and (b) that, in any case,
\nhe  had exceeded his jurisdiction under s.35 in\t calculating
\nthe depreciation on the written down value of the, buildings
\nand machinery of the appellant acting suo motu and that\t he-
\ncould correct only those mistakes which had been pointed out
\nby  the\t miffs. The argument was that recalculation  is\t not
\nrectifying  a  mistake which is apparent  from\tthe  record.
\nThis Court negatived these contentions with this observation
\n\t\t\t    851<\/span>
\n\t      “The  words used in the section are  “apparent
\n\t      from the record” and the record does not\tmean
\n\t      only the order of assessment but it  comprises
\n\t      all proceedings on which the assessment  order
\n\t      is   based  and  the  Income-tax\tOfficer\t  is
\n\t      entitled\tfor  the purpose of  exercising\t his
\n\t      jurisdiction under s.35 to look into the whole
\n\t      evidence\tand the law applicable to  ascertain
\n\t      whether there was an error.  If he doubts\t the
\n\t      Written Down Value of the previous year it  is
\n\t      open   to\t him  to  check\t up   the   previous
\n\t      calculations and if he finds any mistake it is
\n\t      open  to\thim to make  fresh  calculations  in
\n\t      accordance  with the law applicable  including
\n\t      the Rules made thereunder.”\n<\/p>\n
This  Court  then noticed Venkatachalam’s case(1)  and\tKhem
\nChand’s\t case  (supra) in support of the view taken  by\t it.
\nCounsel\t for the then appellant sought to distinguish  these
\ncases on the ground that the record there considered was the
\nassessment  record of that year and the\t Income-tax  Officer
\ndid  not  have to go to the records of\tthe  previous  year.
\nThis argument was repelled in these terms :\n<\/p>\n
\t      “That  is a distinction without a\t difference.
\n\t      If,  for instance, the Income-tax Officer\t had
\n\t      found  that  in the  assessment  year  1952-53
\n\t      there  was an apparent arithmatic\t mistake  in
\n\t      the  account of the Written Down Value of\t the
\n\t      properties  which resulted in a  corresponding
\n\t      mistake  in  the\tassessment of  the  year  in
\n\t      controversy  could he not take  the  corrected
\n\t      figure for the purposes of the assessment\t and
\n\t      could  it\t be ‘Said that the mistake  was\t not
\n\t      apparent\tfrom the record.  A fortiori  if  he
\n\t      discovered   that\t the  very  basis   of\t the
\n\t      different assessments was erroneous because of
\n\t      an initial mistake in determining the  Written
\n\t      Down  Value could it be said that\t this  would
\n\t      not  be  a mistake apparent from\tthe  record.<\/p><\/blockquote>\n
\t      And  if  in  order to  determine\tthe  correct
\n\t      Written  Down  Value  the\t Income-tax  Officer
\n\t\t\t    makes correct calculations, can it be
\nsaid that
\n\t      that is not rectifying a mistake apparent from
\n\t      the record but dehors it.”,
\nThe observations of this Court, quoted above, fully apply to
\nthe facts of the case in hand.\tIt will bear repetition that
\nthe closing stock for the assessment year 1959-60 as entered
\nin  the\t books of the assessee, was Rs. 5,89,439\/-,  and  as
\nfound  by the Income-tax Officer was Rs. 8,04,121\/-.   Since
\nthe  closing  stock  of one assessment\tyear  furnishes\t the
\nfigure\tof  the opening stock for the  succeeding  year,  it
\nfollows\t &,at  the  record  showing  the  closing  stock  of
\nassessment  year  1959-60  formed a  part  of  the  evidence
\nrelevant to the assessment for the assessment year  1960-61.
\nThus  to the extent of ascertaining the closing and  opening
\nstock  positions, the two assessments telescoped  into\teach
\nother.\t Indeed,  it was on this basis\tthat  the  Appellate
\nAssistant  Commissioner had by his decision dated  30-6-1965
\nallowed\t the assessee’s appeal regarding A.Y. 1960-61.\t The
\nTribunal’s finding
\n(1)  [1959] S.C.R. 703.\n<\/p>\n
852<\/span><\/p>\n
that the value of the closing stock for A.Y. 1959-60  should
\nbe  Rs. 5,89,439\/-, had completely replaced  the  Income-tax
\nOfficer’s  finding in regard to that fact with\teffect\tfrom
\nthe date of the Income-tax Officer’s-order relating to\tA.Y.
\n1959-60. if the I.T.O.’s finding with regard to the  closing
\nstock  for  A.Y.  1959-60 was relevant to and  part  of\t the
\n“record of appeal”, the Tribunal’s decision which superseded
\nthat  finding”\twas equally so within the  contemplation  of
\ns.35 of the Act.  It cannot be gainsaid that the mistake  in
\nregard\tto  the\t opening stock for A.Y.\t 1960-61  being\t Rs.
\n8,04,121\/-, was quite apparent when the Appellate  Assistant
\nCommissioner undertook to rectify his appellate order  dated
\n30-6-65, the correct figure of valuation finally  determined
\nby  the Tribunal being Rs. 5,89,439\/-.\tThus considered,  it
\nis clear that for the purpose of ascertaining the true stock
\nposition  the  record of the assessment\t for  A.Y.  1959-60,
\nincluding  the\tTribunal’s decision, was not  extraneous  or
\nirrelevant   to\t  the  record  of  the\tappeal\t and   could
\nlegitimately  be looked into for the purpose  of  correcting
\nthe mistake by the Appellate Assistant Commissioner.
\nThus the first contention of the appellant stands overruled.
\nThe  second  point  canvassed by  Shri\tDesai  is  well-nigh
\ncovered by the ratio of the privy Council decisions in\tKhem
\nChand’s\t case  (supra).\t The assessee in that case  did\t not
\nproduce his account books and the Income tax Officer made an
\nassessment on the ‘best-judgment basis’.  On the application
\nof  the assessee, however, be all-owed registration  of\t the
\nassessee-firm  on-January 17, 1927.  As it was a  registered
\nfirm, he did not in the assessment order made under  s.23(4)
\non the same day, assess any super-tax.\tThe Commissioner  of
\nIncome-tax in exercise of his powers under s.33 of the\tAct,
\ncalled for the record, cancelled the registration on January
\n28,  1927,  and\t directed  the\tI.T.O.\tto  take   necessary
\nconsequential  action.\t The result was that  by  an  order,
\ndated  May 4, 1929, the assessee was assessed to  super-tax.
\nThree  days  later, a demand notice was\t issued.   On  these
\nfacts,\tdelivering  the opinion of the\tJudicial  Committee,
\nLord  Romer made these pertinent observations in  regard  to
\nthe applicability of s.35 :\n<\/p>\n
\t      “in their Lordship’s opinion, the case clearly
\n\t      would  have  fallen within the  provisions  of
\n\t      section\t35   had  the\tIncome-tax   Officer
\n\t      exercised his powers under the section  within
\n\t      one  year from the date on which\tthe  earlier
\n\t      demand was served upon the respondents.\tFor,
\n\t      looking at the record ,of the assessments made
\n\t      upon  them as it stood after the\tcancellation
\n\t      of the respondent’s registration-and the order
\n\t      affecting\t the cancellation would have  formed
\n\t      part of the record-it would be apparent that a
\n\t      mistake  had  been  made in  stating  that  no
\n\t      super-tax was leviable.”\n<\/p><\/blockquote>\n
From  the  quotes  above, it is evident\t that  the  Judicial
\nCommittee   considered\t the  order  of\t  the\tCommissioner
\ncancelling the registration of the assessee’s  firm-although
\npassed about 11 days after the
\n853<\/span>
\noriginal assessment-to have formed part of the record of the
\nassessment,  for the purpose of rectifying the mistake as  a
\nmistake apparent from the record of the case.  On parity  of
\nreasoning, in the instant case, the finding of the  Tribunal
\nas  to\tthe  valuataion\t of  the  stock,  although  recorded
\nsubsequently  to  the appellate decision  of  the  Appellate
\nAssistant  Commissioner, could be taken as forming  part  of
\nthe record of appeal and taken into account for the  purpose
\nof  correcting the mistake, under s.35, as to the  value  of
\nthe  opening  stock  for A.Y. 1960-61,\tapparent  from\tthat
\nrecord.\n<\/p>\n
We  do not want to overburden this judgment by a  discussion
\nof  Ganapatho Subbaraya Hegde’s case (supra) cited  by\tShri
\nDesai.\tSuffice it to say that this was a case under s.37 of
\nthe  Mysore Agricultural Income-tax Act, 1957.\t The  notice
\nfor rectification issued in that case and the orders of\t the
\nauthority were found to be defective in as much as they\t did
\nnot state that there was any mistake apparent on the  record
\nof  the assessment proceedings for the previous three  years
\nin  question.\tMaharana Mills’ case  and  Khemchand’s\tcase
\n(supra) were not noticed by the High Court in that case.
\nLastly,\t Shri Desai urged that we should not lose  sight  of
\nthe  startling\tresults\t which might  flow  from  a  liberal
\ninterpretation of s.35. It is apprehended that if the phrase
\n“record of the appeal” is widely interpreted so as to  cover
\nthe  records  of all collateral proceedings  and  subsequent
\nevents,\t it  would  leave  the door  wide  open\t to  endless
\nharassment  of assessees; the income-tax  authorities  would
\nunder  the  guise  of correcting  mistakes,  lightly  reopen
\nassessments  long  past and closed, and\t thus  introduce  an
\nelement\t of disconcerting instability in the  administration
\nof the Act.\n<\/p>\n
In our opinion, there is no room for any such  apprehension.
\nIt must be remembered that a decision is a precedent on\t its
\nown  facts.   Each  case presents  its\town  features.\t The
\nincome-tax  authorities and Tribunals are supposed to  apply
\nthe  ratio of a decision, to the facts of  particular  cases
\nwith   due  care  and  discernment,  bearing  in  mind\t the
\nrestricted  scope of their jurisdiction under s.35  and\t the
\nobject for which it is conferred.\n<\/p>\n
The appeal fails and is dismissed with costs.\n<\/p>\n
P.B.R.\t\t\t\t\t\t      Appeal\ndismissed.\n854<\/span>\n\n\n\n<\/pre>\n","protected":false},"excerpt":{"rendered":"
Supreme Court of India Mahendra Mills Ltd vs Sheri P. B. Desai, Appellate … on 4 March, 1975 Equivalent citations: 1975 AIR 910, 1975 SCR (3) 846 Author: R S Sarkaria Bench: Sarkaria, Ranjit Singh PETITIONER: MAHENDRA MILLS LTD. Vs. RESPONDENT: SHERI P. B. DESAI, APPELLATE ASSISTANT COMMISSIONER OF DATE OF JUDGMENT04\/03\/1975 BENCH: SARKARIA, RANJIT […]<\/p>\n","protected":false},"author":1,"featured_media":0,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"_lmt_disableupdate":"","_lmt_disable":"","_jetpack_memberships_contains_paid_content":false,"footnotes":""},"categories":[30],"tags":[],"class_list":["post-217510","post","type-post","status-publish","format-standard","hentry","category-supreme-court-of-india"],"yoast_head":"\nMahendra Mills Ltd vs Sheri P. B. 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