Income-tax---

----Rectification of mistakes---Investment allowance claimed allowed in respect of a unit---Investment in unit more than Rs.10 lakhs---Not a small -scale industrial unit ---Assessee manufacturing sanitary pipes---Investment allowance, not allowable in view of S.32-A(2)(b)(iii) read with Item 16 of Sched. XI---Rectification to disallow investment allowance justified---Indian Income Tax Act, 1961, S.32-A, Sched. XI, Item 16.

The assessee claimed investment allowance under section 32-A of the Income Tax Act, 1961, of a sum of Rs.1,17,003 attributable to its sanitary, pipes unit which was allowed by the Inspecting Assistant Commissioner (Assessment). Subsequently, the Inspecting Assistant Commissioner (Assessment) took the view that it was a mistake of law in making allowance of the amount and the mistake was apparent from the record. Therefore, he disallowed the sum under section 154 of the Act. On appeal, the appellate authority held that section 154 could not be invoked. On further appeal, the Tribunal upheld the order of rectification. On a reference:

Held, that the unit was not a small-scale industrial unit under section 32-A(2)(b)(ii) of the Income-tax. Act since the investment in the unit was more than Rs. 10 lakhs and, therefore, investment allowance could not be allowed to the assessee. Moreover, the assessee manufactured sanitary pipes, which are normally used for drainage purposes. Investment allowance is not allowable to an industrial undertaking manufacturing sanitary ware in view of section 32-A(2)(b)(iii) read with Item 16 of the Eleventh Schedule to the Income-tax Act. These mistakes were apparent from the record and, therefore, the Inspecting Assistant Commissioner (Assessment) was right in rectifying the assessment order under section 154 of the Act.

Balaram T.S., ITO v. Volkart Brothers (1971) 82 ITR 50 (SC) ref.

B.L. Nema for the Assessee.

V.K. Tankha for the Commissioner.

JUDGMENT

A.K. MATHUR, C.J.---This is an income-tax reference under section 256(1) of the Income Tax Act, 1961, at the instance of the assessee and the following questions of law have been referred by the Tribunal for answer by this Court:

"(1) Whether, on the facts and circumstances of the case, the Tribunal was justified in holding that there was mistake apparent from the record rectifiable under section 154 of the Income Tax Act, 1961?

(2) Whether, on the facts and circumstances of the case, the Tribunal was justified in holding that the assessee was not entitled to investment under section 32-A of the Income Tax Act, 1961?"

The assessment year involved in present case is 1978-79. The assessee is a public company. The assessee claimed investment allowance under section 32-A of the Income Tax Act, 1961 (for short, "the Act"), of Rs.1,17,003 attributable to the Perfect Sanitary Pipes, Bharatpur unit. In the original assessment completed by the Inspecting Assistant Commissioner (Assessment) on March 19, 1981, the said allowance was allowed. Later on, the Inspecting Assistant Commissioner (Assessment) was of the opinion that there was a mistake in allowing the said investment allowance. The Perfect Sanitary Pipes, Bharatpur unit of the assessee was engaged in manufacturing and production of sanitary ware, which is a prohibited item under the Eleventh Schedule to the Income Tax Act, as item No. 16. He also observed that the assessee was not a small-scale industrial undertaking. -Therefore, the provisions of section 32-A(2)(b)(ii) of the Act were not attracted. According to the Inspecting Assistant Commissioner (Assessment), it was a mistake of law in making allowance of the said amount and the mistake was apparent from the record. Therefore, the sum of Rs.1,17,003 was debited by the assessee to the profit and loss account and was, by mistake, omitted to be disallowed. The Inspecting Assistant Commissioner (Assessment), by invoking section 154 of the Act, rectified the mistake by disallowing the aforesaid allowance by order, dated March 14, 1984.

The assessee preferred an appeal before the appellate authority, which took a contrary view and held that section 154 of the Act could not have been invoked. The Department took up the matter before the Tribunal which found that the Perfect Sanitary Pipes, Bharatpur unit, was not a small scale-industrial undertaking and it was not controverted before it, since it was clear from the depreciation chart of the unit of record that the value of the machinery and plant installed in the unit was worth more than As. 10 lakhs. The Tribunal further observed that item No.16 in the Eleventh Schedule mentioned "Table ware and sanitary ware". The assessee is a manufacturer of sanitary pipes. As such, no investment allowance could be allowed and reversed the finding of the Commissioner of Income-tax (Appeals). Hence, the assessee approached the Tribunal for making a reference and the Tribunal has made this reference of the aforesaid two questions for answer of this Court.

We have heard learned counsel for the parties and perused the record Shri Nema, learned counsel for the applicant, submitted that this was not a case in which a mistake is apparent and it could have been rectified by the authorities under section 154 of the Act. In support thereof, Shri Nema invited our attention to the case of T.S. Balaram, ITO v. Volkari Brothers (1971) 82 ITR 50 (SC). It is true that the scope of section 154 of the Act is very limited and only mistakes, which are apparent could be rectified and this admits of no debate on the issue.

In the present case, the mistake was apparent that the unit was not a small-scale industrial unit and investment in the unit was more than Rs.10,00,000. Therefore, from this admitted position, it was apparent that it was not a small-scale industrial unit under section 32-A(2)(b)(ii) of the Act, because the total valuation of the unit was more than Rs.10,00.000. Therefore, this mistake was apparent. Hence, it was rightly rectified by invoking section 154 of the Act. Likewise, it is also correct that it may be a fact that the assessee manufactures sanitary pipes, which are normally used for drainage purposes, as admitted by the assessee before the appellate authority. Therefore, it is apparent that when they were sanitary wares and prohibited under the Eleventh Schedule to the Act under item No. 16, the assessee was not entitled to the allowance under section 32-A of the Act. The mistake was apparent on the face of the record and, therefore, the authorities invoked section 154 of the Act and rectified the mistake.

In this view of the matter, the view taken by the Tribunal appears to be correct and justified. We, accordingly, answer the questions in favour of the Revenue and against the assessee.

M.B.A./1245/FCReference answered.