- (1.) THE Court: The subject matter of challenge in this appeal is a judgment and order dated 25th July, 2013 by which the learned Income Tax Appellate Tribunal affirmed the judgment of the CIT (appeals) by which the order under section 154 of the Income Tax Act passed by the assessing officer on 23rd June, 2010 was set aside.
(2.) THE original assessment order was made on 29th December 2009. It is a cryptic order by which the assessment was completed under section 115WE(3) of the Income Tax Act, 1961. The assessing officer rectified the order dated 29th December 2009 on the ground that fringe benefits tax at the rate of 20 per cent of the total sum of Rs. 4,73,34,847/ - amounting to a sum of Rs. 94,66,969/ - had not been taken into account. Challenging the aforesaid order, the assessee preferred an appeal. The case of the assessee is that it "is engaged in the business of carriage of passengers by aircraft which the AO has failed to consider". If the aforesaid contention of the assessee is correct then the case of the assessee shall be covered by Clause (f) of subsection (2) of section 115WC which provides as follows; - (2) Notwithstanding anything contained in sub -section (1), - (a) in the case of an employer engaged in the business of hotel, the value of fringe benefits for the purposes referred to in clause (B) of sub -section (2) of section 115WB shall be "five per cent" instead of "twenty per cent" referred to in clause (c) of sub -section (1); (aa) in the case of an employer engaged in the business of carriage of passengers of goods by aircraft, the value of fringe benefits for the purposes referred to in clause (B) of sub -section (2) of section 115WB shall be "five percent" instead of "twenty per cent" referred to in clause (c) of sub -section (1); (ab) in the case of an employer engaged in the business of carriage of passengers or goods by ship, the value of fringe benefits for the purposes referred to in clause (B) of sub -section (2) of section 115WB shall be "five percent" instead of "twenty per cent" referred to in clause (c) of sub -section (1); (b) in the case of an employer engaged in the business of construction, the value of fringe benefits for the purposes referred to in clause (F) of sub -section (2) of section 115WB shall be "five percent" instead of "twenty per cent" referred to in clause (c) of sub -section (1); (c) in the case of an employer engaged in the business of manufacture or production of pharmaceuticals, the value of fringe benefits for the purposes referred to in clauses (F) and (G) of sub -section (2) of section 115WB shall be "five percent" instead of "twenty per cent" referred to in clause (c) of subsection (1); (d) in the case of an employer engaged in the business of manufacture or production of computer software, the value of fringe benefits for the purposes referred to in clauses (F) and (G) of sub -section (2) of section 115WB shall be "five percent" instead of "twenty per cent" referred to in clause (c) of subsection (1); [(da) in the case of an employer engaged in the business of carriage of passengers or goods by aircraft, the value of fringe benefits for the purposes referred to in clause (G) of sub -section (2) of section 115WB shall be "five percent" instead of "twenty per cent" referred to in clause (c) of sub -section (1); (db) in the case of an employer engaged in the business of carriage of passengers or goods by ship, the value of fringe benefits for the purposes referred to in clause (G) of sub -section (2) of section 115WB shall be "five percent" instead of "twenty per cent" referred to in clause (c) of sub -section (1);] (e) in the case of an employer engaged in the business of carriage of passengers or goods by motor car, the value of fringe benefits for the purposes referred to in clause (H) of sub -section (2) of section 115WB shall be "five percent" instead of "twenty per cent" referred to in clause (c) of sub -section (1); (f) in the case of an employer engaged in the business of carriage of passengers or goods by aircraft, the value of fringe benefits for the purposes referred to in clause (l) of sub -section (2) of section 115WB shall be taken as Nil. Whether the assessee was engaged in the business of carriage of passengers or goods by aircraft and, consequently entitled to the benefit of clause (f) of subsection 2 of section 115WC was not considered by the assessing officer at the time of original assessment. If he had considered the question and held against the assessee and still given the benefit it could have been said that he made a mistake which was amenable to the jurisdiction under section 154 of the Income Tax Act. But in this case the aforesaid question was never considered. The case of the assessee that he had chartered his aircraft and earned substantial amount of money was accepted and the assessment was completed on that basis. Therefore, the exercise of power under section 154 was altogether misplaced. Reference in this regard may be made to the judgment in the case of Commissioner of Income -Tax vs. Hero Cycles Pvt. Ltd. and Ors. reported in : 228 ITR 463 wherein the Apex Court held as follow; - Rectification under section 154 can only be made when a glaring mistake of fact or law committed by the officer passing the order becomes apparent from the record. Rectification is not possible if the question is debatable. Moreover, the point which was not examined on fact or in law cannot be dealt with as a mistake apparent on the record. This dispute raised a mixed question of fact and law.
(3.) FOR the aforesaid reasons the appeal preferred by Revenue does not involve any substantial question of law. The appeal is accordingly dismissed.;