WEALTH TAX OFFICER Vs. SARDAR HARDIT SINGH
INCOME TAX APPELLATE TRIBUNAL
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H.C. Shrivastava, Accountant Member -
(1.) AS all these appeals though concern different assessees involved same point, they are being disposed of together for the sake of convenience.
(2.) The facts of these appeals are as below :
(1) In all the cases the assessees had claimed deduction under Section 2(m) of the Wealth-tax Act on account of liability of income-tax raised against the assessees under Voluntary Disclosure Scheme of 1977.
(2} In all these appeals the Assessing Officer had refused to grant this deduction to the assessees in view of the Gujarat High Court decision in the case of CWT v. Ahmed Ibrahim Sahigara  93 ITR 288. All these orders were passed by the Assessing Officer on 15-12-1978.
(3) All the assessees of this group of appeal filed petitions under Section 35 of the Wealth-tax Act on 27-2-1979 inviting attention of the Assessing Officer to the unreported decision of the I.T.A.T. in the case of Sr. Inder Singh v. FTO.
(4) In the year 1981 the Hon'ble Supreme Court reversed the decision of the Gujarat High Court in Ahmed Ibrahim Sahigra Dhorqji v. CWT  129 ITR 314 (SC).
(5) The Assessing Officer, however, kept the petitions of the assessees pending with him from 1979 to August 1991.
(6) On 2-8-1991 the W.T.O passed the following order under Section 35 of the W.T. Act:-
The assessee has applied for rectification of mistake vide application dated 27-2-1979 vide acknowledgement No. 284912. Since there is no mistake apparent from the record hence [sic) the application is hereby rejected.
Besides above, nothing else is mentioned or discussed in the body of this order.
(7) All the assessees went in appeal to the Dy. CWT(Appeals) against the said orders of the W.T.O. The Dy. CWT (Appeals) by his order dated 29-1-1992 allowed the assessees' appeals after taking into consideration the decision of the Supreme Court in Ahmed Ibrahim Sahigra Dhorqji's case (supra) and Madhya Pradesh High Court decision reported in 51 CTR 352.
The Department is in appeal before us.
The Departmental Representative submitted that at the time when the Assessing Officer passed the orders, the decision of the Gujarat High Court was available to him and on the basis of that decision he did not allow the claim of the assessee. The assessee filed the petition under Section 35 by relying on the Tribunal's decision. It was, therefore, submitted that at the time when the assessee filed the petitions there was no mistake apparent from record of the Assessing Officer either on facts or in law. Attention was also invited to the fact that there were conflicting decisions regarding the allowance of tax liability under Section 2(m) of the Act based on the disclosure made by the assessees under Voluntary Disclosure Scheme. Even if the Supreme Court has settled the issue the fact remains that there were conflicting decisions at the time when the Assessing Officer passed the order and, therefore, there was no mistake apparent from record. He therefore, relied upon the decision of the Supreme Court in the case of T.S. Balaram, ITO v. Volkart Bros.  82 ITR 50 to submit that the order of the Assessing Officer was rightly not rectified under Section 35 of the Act as the rectification would have involved detailed arguments and there was no mistake apparent from record.
(3.) THE assessee's counsel, however, submitted that the Assessing Officer was bound to follow circular issued by the Board in 1977. He invited our attention to the said circular which appears on page 6 of the paper book. He submitted that the Board had issued clear instructions that wherever the decisions of the Supreme Court are available and there are cases which were decided in past by taking a contrary view the same can be rectified under Section 35 of the Wealth-tax Act or 154 of the Income-tax Act. He further relied upon various decisions including the Supreme Court decision in S.A.L. Narayana Rao, CIT v. Model Mills Nagpur Ltd.  64 ITR 67.;
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