Sabyasachi Mukharji, J. - (1.) In this reference under Section 256(1) of the I.T. Act, 1961, the following question has been referred to this court: "Whether, on the facts and in the circumstances of the case, the Tribunal was justified in dismissing the appeal filed by the assessee before it on the ground that no competent appeal lay before the AAC ?"
(2.) In order to appreciate the question posed, a few facts will have to be stated. The question arises with reference to the action of the ITO under Section 154 of the I.T. Act, 1961, for the assessment year 1961-62, whereby he had withdrawn super-tax rebate which, according to him, was allowed in excess at the time of the original assessment. The ITO passed the order on 31st August, 1968. The action of passing the order-under Section 154 was due to the order of the AAC. The assessee went up in appeal to the AAC, who observed, inter alia, as follows : "The revision has been made for the reason that the income from dividends suffered super-tax at the effective rate of 10% while the dividends which were exempt under Section 15C(4) and Section 56A of the Indian Income-tax Act, 1922, were given rebate at the rate of average rate of super-tax at 26.178% which was much higher than the rate at which the dividend income actually suffered super-tax. It is also pointed out in the order under Section 154 that the actual amount of super-tax charged on the amount of Rs. 5,68,206 representing dividends exempt under Section 15C(4) was Rs. 56,82060 whereas the rebate allowed on the amount was Rs. 1,48,74497. It is also pointed out that the actual amount of super-tax charged on Rs. 24,95,480 representing dividends exempt under Section 56A was Rs. 2,49,158 whereas the rebate allowed was Rs. 6,53,266. The Income-tax Officer sought to rectify the order u/s. 154 but the appellant had objected to the proposed rectification on the ground that the rebate was correctly allowed in the original order and that the mistake, even there be any, is not rectifiable under Section 154. The Income-tax Officer, for the reasons mentioned in his order, which are considered later, rejected the objection and rectified the order."
(3.) For the purpose of answering the question it has to be noted that the AAC was of the view that the ITO was on the whole right though the working had to be done differently. He, therefore, worked out the supertax payable by the assessee in a particular way. It is not necessary for our present purpose to refer to how he worked out the net super-tax payable.;