sec.263
This query is : Resolved
11 May 2009
when revisionary order is passed u/s 263,which record is relevant:
records at the time of revision by commissioner
or
records at the time of passing order
also,tell me whether the same equation holds true for rectification order under sec.154 & sec.254
records at the time of revision by commissioner
or
records at the time of passing order
also,tell me whether the same equation holds true for rectification order under sec.154 & sec.254
11 May 2009
Dear Rashmi
Records us 263 mean records as it standa at the time of examination by commissioner and not as it stands at the time of order bt A.O.
Records us 263 mean records as it standa at the time of examination by commissioner and not as it stands at the time of order bt A.O.
11 May 2009
u.s. 154 & 254
Records means the assessment order and the entire proceeding
on which the assessment order is based
Records means the assessment order and the entire proceeding
on which the assessment order is based
12 May 2009
so,if there is any court ruling contrary to the decision of AO,the assesse can't go for rectification u/s 154??
12 May 2009
No court ruling please refer section 154(8):....
Where an application for amendment u/s 154 is made by assessee on or after the 1st day of June, 2001 to an income tax authorities referred u/s 116, the authority shall pass an order, within a period of six months from the end of the month in which the applicaion is received by the authority-- making the ammendment or refusing to allow the claim.
Note: it is implied here that there is no discreation to conderned authority and authority has to make such ammendment for rectifying mistake brought to its notice by the assessee.
further an appeal can be made against an order passed under section 154 refusing to rectify a mistake and revision application can also be made u/s 264
Where an application for amendment u/s 154 is made by assessee on or after the 1st day of June, 2001 to an income tax authorities referred u/s 116, the authority shall pass an order, within a period of six months from the end of the month in which the applicaion is received by the authority-- making the ammendment or refusing to allow the claim.
Note: it is implied here that there is no discreation to conderned authority and authority has to make such ammendment for rectifying mistake brought to its notice by the assessee.
further an appeal can be made against an order passed under section 154 refusing to rectify a mistake and revision application can also be made u/s 264
13 May 2009
no sir
actually i am asking that suppose assessment order was passed treating a certain expenditure as capital nature n was disallowed.
later on(within 4 yrs.) a court ruling came treating the same expediture as revenue,so it must be allowed.
now,can the assessee go for rectification of mistake u/s 154 based on such records?
actually i am asking that suppose assessment order was passed treating a certain expenditure as capital nature n was disallowed.
later on(within 4 yrs.) a court ruling came treating the same expediture as revenue,so it must be allowed.
now,can the assessee go for rectification of mistake u/s 154 based on such records?
13 May 2009
Dear Rashmi,
It seems illogical you consider only the definition of records but it is possible due to the ruling of Supreme Court, the following decision and circular would be very helpful to make you understand:
Mistakes apparent from records
-------------------------------
Whether can be treated as such on the basis of subsequent decision of Supreme Court
Circular : No. 68 [F.No. 245/17/71-A&PAC], dated 17-11-1971.
-------------------------------------------
1. The Board are advised that a mistake arising as a result of a subsequent interpretation of law by the Supreme Court would constitute a mistake apparent from the records and rectificatory action under section 35/154 of the 1922 Act/the 1961 Act would be in order. It has, therefore, been decided that where an assessee moves an application under section 154 pointing out that in the light of a later decision of the Supreme Court pronouncing the correct legal position, a mistake has occurred in any of the completed assessments in his case, the application shall be acted upon, provided the same has been filed within time and is otherwise in order. Where any such applications have already been rejected and the assessee files fresh applications within the statutory time limit, the same may also be treated on par with the applications which may either be pending or received after the issue of this circular.
2. The Board desire that any appeals or references pending on the point at issue may please be withdrawn.
JUDICIAL ANALYSIS
-------------------------------------------
EXPLAINED IN - In ITO v. Smt. Manini Niranjanbhai [1992] 41 ITD 324 (Ahd.-Trib.) (SMC) it was observed that as per Circular No. 68, dated 17-11-1971, it is now a well established position that the Supreme Court does not declare the law with effect from the date of its order and the law declared by the Supreme Court has effect not only from the date of the decision but from the inception of the statutory provision. It has been mentioned therein that the Board have been advised that the mistake arising as a result of subsequent interpretation of law by the Supreme Court would constitute a mistake apparent from record and rectificatory action under section 154 would be justified.
It seems illogical you consider only the definition of records but it is possible due to the ruling of Supreme Court, the following decision and circular would be very helpful to make you understand:
Mistakes apparent from records
-------------------------------
Whether can be treated as such on the basis of subsequent decision of Supreme Court
Circular : No. 68 [F.No. 245/17/71-A&PAC], dated 17-11-1971.
-------------------------------------------
1. The Board are advised that a mistake arising as a result of a subsequent interpretation of law by the Supreme Court would constitute a mistake apparent from the records and rectificatory action under section 35/154 of the 1922 Act/the 1961 Act would be in order. It has, therefore, been decided that where an assessee moves an application under section 154 pointing out that in the light of a later decision of the Supreme Court pronouncing the correct legal position, a mistake has occurred in any of the completed assessments in his case, the application shall be acted upon, provided the same has been filed within time and is otherwise in order. Where any such applications have already been rejected and the assessee files fresh applications within the statutory time limit, the same may also be treated on par with the applications which may either be pending or received after the issue of this circular.
2. The Board desire that any appeals or references pending on the point at issue may please be withdrawn.
JUDICIAL ANALYSIS
-------------------------------------------
EXPLAINED IN - In ITO v. Smt. Manini Niranjanbhai [1992] 41 ITD 324 (Ahd.-Trib.) (SMC) it was observed that as per Circular No. 68, dated 17-11-1971, it is now a well established position that the Supreme Court does not declare the law with effect from the date of its order and the law declared by the Supreme Court has effect not only from the date of the decision but from the inception of the statutory provision. It has been mentioned therein that the Board have been advised that the mistake arising as a result of subsequent interpretation of law by the Supreme Court would constitute a mistake apparent from record and rectificatory action under section 154 would be justified.
14 May 2009
thnx for the circular
i was only asking in regard to dis
i was only asking in regard to dis
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