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JUDGEMENTS                                            I.T.R. 23/1983                                           Back To Index

HIGH COURT OF JAMMU & KASHMIR
I.T.R. 23 1983

Date Of decision :17-11-2000

Commissioner of Income-tax, Amritsar Versus Agya Wanti & others.
Coram:
The Hon’ble Mr. Justice Dr. B. P. Saraf, Chief Justice.
The Hon’ble Mr. Justice Syed Bashir-ud-Din, Judge.

Mr. Anil Bhan, Senior Central Government Standing Counsel.

JUDGEMENT AND ORDER

Per Dr. B. P. Saraf, Chief JusticeBy this reference under section 256 (1) of the Income-tax Act, 1961 ("Act"), the Income-tax Appellate Tribunal, Amritsar Bench, Amritsar ("Tribunal") has referred the following questions of law to this Court for opinion at the instance of the revenue:

"Assessment year 1975-76:

1. Whether on the facts and in the circumstances of the case, the Tribunal is right in law in holding that the order made by the ITO under section 154 allowing thereunder the depreciation due in respect of the Truck is not an order to rectify a mistake apparent from the records and is, therefore, unsustainable?

. Assessment year 1976-77:

2. Whether on the facts and in the circumstances of the case, the tribunal has misdirected itself in law in holding that the assessee had not furnished the particulars as required under section 34 of the Income-tax Act, 1961 for the allowance of depreciation in respect of the Truck?

3. Whether on the facts and in the circumstances of the case, the Tribunal is right in law in holding that the ITO is not justified in allowing the depreciation in respect of the Truck?"

2. The material facts of the case, briefly stated, are as follows. The assessee submitted the return of its income under the Income-tax Act for the assessment year 1975-76. In the return, the assessee did not claim depreciation on the truck owned by him and used for the purpose of his business. The Income-tax Officer assessed the income of the assessee on the basis of the return under section 143(1) of the Act and determined the taxable income at Rs.19,067/-. Later, the Income-tax Officer rectified the order under section 154 of the Act as he found that depreciation had not been allowed in the assessment on truck No.127 even though the particulars were available on the file. The Income-tax Officer, therefore, allowed depreciation of Rs.16,170/- on that truck and re-determined the taxable income of the assessee at Rs.2,900/. Aggrieved by the order of rectification of the Income-tax Officer by which he allowed depreciation in respect of the truck which he did not claim in his return, the assessee appealed to the Appellate Assistant Commissioner of Income-tax. The case of the assessee before the Appellate Assistant Commissioner was that no depreciation having been claimed by him in his return in respect of the truck in question, the Income-tax Officer had no power to rectify the assessment order under section 154 of the Act and grant the same. It was also contended by the assessee that the rectification having been made without affording an opportunity to the assessee as contemplated by section 154 of the Act, the order of rectification was illegal. The Appellate Assistant Commissioner accepted the latter contention of the assessee and held that the order of the Income-tax Officer was illegal because it had the effect of increasing the liability of the assessee in the next assessment year viz. Assessment year 1976-77 and hence it could not have been passed without issuing any notice to the assessee of its intention to do so and allowing the assessee a reasonable opportunity of being heard. The Appellate Assistant Commissioner, therefore, set-aside the order of rectification of the Income-tax Officer under section 154 of the Act. Revenue appealed to the Tribunal. The Tribunal was of the view that the question of grant of depreciation in a case where the assessee does not claim the same was a debatable point and, that being so, power under section 154 of the Act could not have been exercised by the Income-tax Officer. The Tribunal, therefore, upheld the order of the Appellate Assistant Commissioner, though on a different ground. Aggrieved by the above order of the Tribunal, revenue applied for reference of the question of law set out in question No.1 above to this Court for opinion. The Tribunal has, accordingly, referred question No.1 to this Court for opinion.

3. Question Nos. 2 and 3 pertain to the assessment year 1976-77. In that year, though in its return of income, the assessee did not claim any depreciation in respect of the truck in question, in the order of assessment under section 143(1) of the Act, the Income-tax Officer allowed depreciation on the written-down value of the truck which could have been arrived at after allowing depreciation for the earlier year .He did not accept the plea of the assessee that depreciation cannot be allowed in the absence of a claim made by the assessee in that regard. The Income-tax Officer found that the particulars required for allowance of depreciation having been available in the return, depreciation was allowable to the assessee. He, therefore, suo moto, allowed depreciation in respect of the truck which the assessee did not claim. This action of the Income-tax Officer was challenged by the assessee before the Appellate Assistant Commissioner. The Appellate Assistant Commissioner accepted the contention of the assessee that no depreciation can be allowed unless the assessee claims the same. He, therefore, cancelled the order of the Income-tax Officer insofar as the grant of depreciation was concerned. Revenue appealed to the Tribunal. The Tribunal was of the opinion that in view of conflict of opinion on this issue between different High Courts, the Income-tax Officer could not have rectified the order under section 154 of the Act. On the merits of the decision of the Income-tax Officer to grant depreciation suo motu, the Tribunal held that the assessee having not furnished the requisite particulars for the purpose of depreciation and having not claimed depreciation in respect of the truck, the Income-tax Officer should not have allowed depreciation in computing his income. The Tribunal found that the written down value had been repeated mechanically from the earlier assessment year without the requisite particulars having been furnished by the assessee in the return. The Tribunal, therefore, held that the Income-tax Officer should not have allowed depreciation, as the assessee had not furnished particulars because his intention was not to claim depreciation. The Tribunal relied on the circular of the Central Board of Direct Taxes and held that the Income-tax Officer was wrong in allowing depreciation of Rs.11,320/- to the assessee. The deduction allowed in the assessment on account of depreciation was, therefore, deleted by the Tribunal. Revenue sought for reference of question Nos.2 and 3 to this Court for opinion under section 256(1) of the Act. The Tribunal has referred the same to this Court.

4. We have given our careful consideration to the questions referred to us. The controversy in the first question is about the power of the Income-tax Officer to rectify the assessment under section 154 of the Act and grant depreciation to the assessee in respect of the truck which the assessee did not claim in its return. The rectification was challenged by the assessee on various grounds. The first ground of challenge was that the assessee having not claimed depreciation in its return, the Income-tax Officer could not have granted it by rectifying the assessment. The second ground was that the rectification had the effect of increasing the liability of the assessee in the next assessment year. The same could not have been done without giving notice to the assessee of its intention to do so and allowing the assessee a reasonable opportunity of being heard. The third ground of challenge was that there being a divergence of opinion between different High Courts on the point whether the assessing officer could grant depreciation allowance when the same was not claimed by the assessee, the Income-tax Officer could not have rectified the assessment and granted depreciation because there was no mistake apparent from the record contemplated by section 154 of the Act. The Appellate Assistant Commissioner set-aside the order of rectification on the ground that it was passed without giving a notice to the assessee and without affording him an opportunity of hearing. The Tribunal upheld the order of Appellate Assistant Commissioner but on a different ground. The Tribunal held that the question whether the assessing officer can grant depreciation allowance when the same is not claimed by the assessee being a debatable point, the power of rectification under section 154 of the Act could not have been exercised.

5. We have given our careful consideration to the questions referred to us. Section 154 of the Act provides for rectification of mistake apparent from the record. The power under section 154 of the Act, therefore, can be exercised only if there is a mistake in the order and the mistake is apparent from the record. Law is well settled that only a glaring and obvious mistake of law can be corrected under section 154 of the Act. A decision on a debatable point of law cannot be corrected by way of rectification. If the rectification was made at a time when the issue was debatable it cannot be supported by reference to the Supreme Court's decision settling the issue which is rendered after the rectification.

6. In the instant case, there is no dispute about the fact that at the time when the rectification was made, there was a sharp cleavage of opinion between different High Courts on the point. The controversy was set at rest recently by the Supreme Court by its judgment dated 15th March, 2000 in CIT v Mahindra Mills [2000] 243 ITR 56. In that case, the Supreme Court held that the provision of section 34 of the Act to claim depreciation being for the benefit of the assessee, if the assessee does not wish to avail of that benefit for some reason, the benefit cannot be forced upon him. In view of the above, we are of the clear opinion that on the facts and in the circumstances of the case, the Tribunal was right in law in holding that the order of the Income-tax Officer under section 154 of the Act is not an order to rectify a mistake apparent from the record and hence it is not sustainable. Question No.1 is, therefore, answered in the affirmative i.e., in favour of the assessee and against the revenue.

7. We may now turn to question Nos. 2 and 3. The controversy in question Nos. 2 and 3 again is regarding grant of depreciation to an assessee who does not want to avail of the same. The Tribunal held that the assessee having not furnished the requisite particulars in respect of the truck in question for the purpose of grant of depreciation and having not claimed depreciation in respect thereof, the Income-tax Officer should not have allowed depreciation in computing his income. The Tribunal noted that the written-down value of the truck had been repeated mechanically from the earlier assessment year without the requisite particulars having been furnished by the assessee. So far as the factual controversy as to whether the assessee had furnished the particulars as required under section 34 of the Act for the purpose of depreciation in respect of the truck or not, we find that there is a definite finding of fact by the Tribunal that such particulars had not been furnished. As stated earlier, the Tribunal has categorically stated that the written- down value of the truck had been repeated mechanically from the earlier assessment year without any particular having been furnished by the assessee in his return. That being so, the Tribunal, in our opinion, was right in holding that the assessee had not furnished the particulars as required under section 34 of the Act for the allowance of depreciation in respect of the truck.

8. So far as the third question is concerned, though at the material time there was a divergence of opinion between the High Courts whether the Assessing Officer can grant depreciation allowance when it was not claimed by the assessee, that controversy is now settled by the decision of the Supreme Court in CIT v Mahindra Mills (supra). The Supreme Court in that case considered the decisions of the High Courts of Allahabad and Madras which took the view that the Income-tax Officer could grant depreciation allowance even if it was not claimed by the assessee. The Supreme Court also considered the decisions of the Bombay, Gujrat, Punjab, Haryana, Karnataka, Andhra Pradesh, Calcutta and Kerala High Courts wherein a contrary view had been taken. The Supreme Court repelled the argument on behalf of the revenue that since section 32 provides for depreciation it has to be allowed in computing the income of the assessee. The Supreme Court held that the provision for claim of depreciation being for the benefit of the assessee, if he does not wish to avail of that benefit for some reason, the benefit cannot be forced upon him. It is for the assessee to claim depreciation, if it is to his advantage. The Supreme Court held (at p. 80):

"…Section 34 is not in the nature of merely an enabling provision. In the absence of particulars of depreciation as required by section 34, there is no mandate on the Income-tax Officer under section 29 to compute the income by allowing depreciation under section 32…"

9. It is clear from the above decision of the Supreme Court that no depreciation can be allowed in a particular assessment year if the assessee does not want to claim it in that year. In the instant case, the assessee did not claim any depreciation in the year under consideration. He did not even furnish the particulars required for allowance of depreciation under section 34 of the Act. In such a situation, the Income-tax Officer could not and should not have allowed the same.

10. In view of the above, we are of the clear opinion that on the facts and in the circumstances of the present case, the Tribunal was right in holding that the Income-tax Officer was not justified in allowing depreciation in respect of the truck which had not been claimed by the assessee.

11. In the premises, question No. 2 is answered in the negative, i.e., in favour of the assessee and against the revenue. Question No.3 is answered in the affirmative, i.e., in favour of the assessee and against the revenue.

The reference is disposed of accordingly with no order as to costs.