B.K.MEHTA, J. - (1.) A few facts need be noticed before we set out the question referred to us in this group of references for our opinion. Since the facts are similar in all these references, we intend to dispose of these reference by this common judgement.
(2.) THE relevant assessment year is 1967 -68. The assessee of Income -tax Reference No. 5 of 1974 was liable to pay annuity deposit for the assessment year 1967 -68, admittedly before 31st March, 1967. As a matter of facts, the same was paid on 3rd April, 1967. In other words, the payment was delayed by three days. It appears that the Income -tax Officer concerned while making the assessment order for the assessment year 1967 -68 allowed deduction on that count of annuity deposit from the payable income of the assessee. However, later on, the Income -tax Officer on June 17, 1969, passed on order purporting to act under section 154 of the Income -tax Act, 1961, and corrected the order since the conditions precedent for condoning delay in making payment of the annuity deposit were not satisfied with the result that the allowance made on account of annuity deposit was withdrawn. Being aggrieved by this order of rectification of the Income -tax Officer, the assessee went in appeal before the Appellate Assistant Commissioner who confirmed the oreder of the Income -tax Officer. The assessee, therefore, carried the matter in further appeal to the Tribunal. Before the Tribunal, it was conceded on behalf of the assessee that no application in the prescribed form as required by clause 4 of the Annuity Deposit Scheme, 1966, was made within the prescribed period. It was also conceded that no previous approval of the Inspecting Assistant Commissioner as required under 2nd proviso to clause 4 was obtained by the Income -tax Officer. The Tribunal, however, was of the opinion that since the Income -tax Officer had a discretion under the proviso to section 280C(2) of the Income -tax Act, 1961, to extend the time and since the Income -tax Officer concerned had noted that the deposit was paid after the prescribe date, it should be deemed that he had exercised his discretion in the matter of condoning the delay, inasmuch as he allowed deduction for the annuity deposit. In the opinion of the Tribunal, the lack of prior permission of the Inspecting Assistant Commissioner would not affect the position and the Income -tax Officer was not entitled to treated this as a mistake apparent on the record and rectify the order under section 154. The Tribunal also laid emphasis on the fact that the department has treated this as annuity deposit not only in the relevant assessment year but in subsequent years as well when 1/10th amount refunded to the assessee was being brought to tax. The Tribunal, therefore, held that the mistake sought to be rectified by the under section 154. The Tribunal, therefore, by its common order of 27th February, 1973, allowed the five appeals of the five respondents herein before us and set aside the orders of rectification made under section 154. At the instance of the Commissioner, the following question has referred to us in each of these five references. 'Whether, on the facts and in the circumstances of the case, the Tribunal erred in law in holding that the mistake sought to be rectified by the Income -tax Officer was not a mistake apparent on the record which can be rectified under section 154 of the Act, and thereby quashing the rectification order of the Income -tax Officer under section 154 of the Act ?' In all these five references the question referred to us is identical and, therefore, we intend to dispose of these reference these references by this common judgment. A few relevant provisions need be noted before we deal with the rival contentions of the parties before us, Section 280C of the Income -tax Act, 1961, prescribed for the payment of annuity deposit in the following terms : '280C Requirement as to annuity deposit. - (1) Where, in relation to any assessment year, not being an assessment year, commencing on or after the 1st day of April, 1969, any Central Act enacts that any person to whom the provision of this Chapter apply shall make for any assessment year in annuity deposit with the Central Government at any rate or rates, such person shall make such deposit at that rate or those rates in accordance with, and subject to the provisions of, this Chapter in respect of the adjusted total income of the previous year or previous years, as the case may be. (2) In respect of the adjusted total income in relation to which an annuity deposit is to be made under sub -section (1), such deposit shall - (i) in respect of the adjusted total income of the previous year or previous years relevant to the assessment year commencing on the 1st day of April, 1966, or any earlier assessment year, be made in advance in accordance with the provisions of sections 280E to 280 -I; (ii) in respect of the adjusted total income of the previous year or previous years relevant to the assessment year commencing on the 1st day of April, 1967, or any subsequent assessment year, not being an assessment year commencing on or after the 1st day of April, 1969, be made by such person at any time (in one sum or in instalments of his choice) during the financial year immediately preceding such assessment year at the rate or rates specified in this behalf in the annual Finance Act : Provided that the Income -tax Officer may, in such cases, under such circumstances and subject to such conditions as may be specified in a scheme framed under section 280W, allow a depositor to make a deposit or a further deposit at any time after the expiry of the financial year referred to in clause (ii), and any deposit or further deposit so made shall be deemed to be an annuity deposit for the relevant assessment year for the purposes of this Chapter.' Section 280D provides for repayment subject to the provisions of Chapter XXII -A and the Scheme framed thereunder. Under section 280D, the Central Government is under obligation to repay to the depositor the annuity deposit made or recovered in any year in ten equal instalments of principle and interest at such rate or rates as may be notified by the Central Government in the Official Gazette. Section 280C provides for deduction of the amount of annuity deposited in computing total income. Sub -section (1) of section 280 -O. Which is relevant for our purposes, reads as under : '280 -O. Annuity deposit allowed as deduction in computing total income. - (1) Notwithstanding anything to the contrary contained in the provisions of this Act relating to the computation of income chargeable under any head of income, the annuity deposit required to be made under this Chapter shall, subject to the provisions of sub -section (2), be allowed as a deduction in computing the total income assessable for the assessment year in respect of which the annuity deposit is required to be made : Provided that where in relation to the assessment year commencing on the 1st day of April, 1967, or any subsequent assessment year, not being an assessment year commencing on or after the 1st day of April, 1967, no annuity deposit has been made during the financial year immediately preceding such assessment year (or such further period as may be allowed be the Income -tax Officer under the proviso to clause (ii) of sub -section (2) of section 280C), or the amount of annuity deposit made during the financial year or further period aforesaid falls short of the annuity deposit required to be made under this Chapter, the amount to be allowed as a deduction under this sub -section shall be nil or, as the case may be, limited to the amount of the deposit so made, and the provisions of this section shall have effect as if references therein to the annuity deposit required to be made were references to the amount of annuity deposit actually so made.' Section 280W empowers the Central Government to frame one or more scheme or schemes to be called Annuity Deposit Scheme or Schemes in relation to deposits under Chapter XXII -A. Sub -section (2) enumerates the different topics which may be provided for the by purposes of theses references. Sub -section (2)(aa) reads as under : '280W. Annuity Deposit Scheme. - (1) ....... (2) A scheme under sub -section (1) may provide for - ..... (aa) the cases in which, the circumstances under which and the conditions subject to which, the Income -tax Officer may, under the proviso to clause (ii) of sub -section (2) of section 280C, allow a depositor to make a deposit or a further deposit after the expiry of the financial year immediately preceding the assessment year.' The Central Government has, in exercise of powers conferred by section 280W of the Income -tax Act, 1961, framed and Annuity Deposit Scheme, 1966. Clause 4 of the said Scheme, so far as relevant for purposes of these references, reads as under :
(3.) DEPOSIT when to be made.- (i) Save as provided hereinbelow, annuity deposit in relation to any assessment year commencing on the 1st day or April, 1967, or any subsequent assessment year, shall be made at any time (in one sum or in instalments of the depositors choice) during the financial year immediately preceding such assessment year (which financial year is hereafter, in this Scheme, referred to as the relevant financial year). (2) Notwithstanding anything contained in sub -paragraph (1), the Income -tax Officer may, on an application by the depositor in Form A made on or before the specified date, by order in writing allow the depositor to make a deposit or, as the case may be, a further deposit after the expiry of the relevant financial year, where - .... (v) the depositor produces evidence to the satisfaction of the Income -tax Officer that he was prevented by sufficient cause from making the deposit or the full amount of the deposit required to be made, during the relevant financial year : Provided that the further period so allowed by the Income -tax Officer under this sub -paragraph shall, in no case, extend beyond a period of thirty days from the date of this order : Provided further that the previous approval of the Inspection Assistant Commissioner shall be obtained before allowing the depositor, under clause (v), to make a deposit or, as the case may be, a further deposit after the expiry of the relevant financial year.' ;