Law:

Section:

Section 35 of the indian income-tax act, 1922 [corresponding to section 154 of the income-tax act, 1961]-Rectification of mistake-Apparent from record-Assessment order passed under section 23A of the 1922 act but rectification of mistake made under the 1961 act-Tribunal held that ito had no jurisdiction either under section 154 of the 1961 act or under section 35 of the 1922 act to rectify mistake pertaining to order passed under section 23a of the 1922 act-Whether justified in holding so-Held, on facts, no Facts For the assessment year 1960-61, the ITO passed the assessment order under section 23A of the 1922 Act but subsequently initiated action for rectification of mistake under section 154 of the 1961 Act. The assessee did not raise any objection and the ITO passed the rectification order accordingly. The AAC rejected the assessee's appeal assailing the rectification order. On further appeal, the Tribunal held that in view of section 297(2)(c), only the provisions of the 1922 Act would be applicable to all matters arising out of the order passed under section 23A of the 1922 Act, and that under section 35 of the 1922 Act, the ITO had no jurisdiction to rectify an order passed under section 23A thereof. The rectification order was, accordingly, set aside. On reference: Held In the context of section 35(1) of the 1922 Act, the expression 'assessment order' would include an order made under section 23A of the 1922 Act also and as such an order forms part of therecord of assessment. Correcting an apparent error in an order made under section 23A is rectifying a mistake in the record of assessment and clearly falls within the ambit of the power conferred on the ITO under section 35(1). The instant case was, admittedly, governed by section 35(1) and although reference was made in the order of rectification to section 154 of the 1961 Act and not to section 35, that would not make any difference to the validity of the order, because it was clear that the power exercised by the ITO was the power of rectification and it only so happened that the wrong section was quoted in the order. The Tribunal was thus not justified in holding that the ITO had no jurisdiction…

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