Sen, J. - (1.) In the present reference at the instance of the Commissioner of Income-tax, West Bengal-I, Calcutta, under Section 256(2) of the Income-tax Act, 1961, this court directed the Tribunal to state a case on the following question : " Whether, on the facts and in the circumstances of the case, the Tribunal was justified in holding that there was a clear mistake apparent from the record within the meaning of Section 154 of the Income-tax Act, 1961, and in directing the Income-tax Officer on that basis to recompute the tax according to the provisions of law laid down in the Finance Act, 1964."
(2.) The facts found and/or admitted in these proceedings are, inter alia, as follows. Messrs. Simplex Concrete Piles (India) Pvt. Ltd., the assessee, was assessed to income-tax in the assessment yaar 1964-65 when its toal income was assessed at Rs. 5,51,919. On appeal, this amount was reduced to Rs. 4,38,478. Thereupon, the assessee claimed that since it was engaged in the business of manufacture and/or processing concrete piles and since its total income for the said assessment year was below Rs. 5 lakhs it was entitled to relief under the provisions of Paragraph D of Part II of the First Schedule to the Finance Act, 1964, and its income should be charged to tax at the reduced rate as provided in the said Act. The assessee contended that by reason of the order of the Appellate Assistant Commissioner reducing the total income of the assessee below Rs. 5 lakhs a mistake had become apparent from the record in not allowing the relief which the assessee was entitled to and that the said mistake should be rectified by an order under Section 154of the Income-tax Act, 1961.
(3.) The Income-tax Officer rejected the assessee's claim for rectification. Being aggrieved the assessee preferred an appeal to the Appellate Assistant Commissioner who held that the assessee was itself a contractor and erection of piles constituted an essential ingredient of the contracts undertaken by the assessee and such construction could not be treated as a manufacturing activity. The appeal of the assessee was accordingly rejected.;