Delhi H.C : Whether, on the facts and in the circumstances of the case, the Tribunal is right in holding that the failure of the ITO to deduct borrowed money and liabilities from the gross value of the assets in the computation of capital for the purpose of s. 80J of the IT Act, 1961, is not a mistake apparent from the record in terms of s. 154 of the Act ?

Counsel Appeared

R.C. Pandey with Ajay Jha, for the Revenue : None, for the Assessee

JUDGMENT

ARIJIT PASAYAT, C.J. :

At the instance of the Revenue, the following question has been referred for the opinion of this Court by the Tribunal, Delhi Bench “E”, Delhi (in short, the “Tribunal”), under s. 256(1) of the IT Act, 1961 (in short, the “Act”) :

“Whether, on the facts and in the circumstances of the case, the Tribunal is right in holding that the failure of the ITO to deduct borrowed money and liabilities from the gross value of the assets in the computation of capital for the purpose of s. 80J of the IT Act, 1961, is not a mistake apparent from the record in terms of s. 154 of the Act ?”

We have heard learned counsel for the Revenue. There is no appearance on behalf of the assessee in spite of notice. Though the Tribunal was justified in its conclusion that where there is a debatable point involved, s. 154 of the Act, would not be applicable, in view of the decision of the apex Court in the case of Lohia Machines Ltd. vs. Union of India (1985) 44 CTR (SC) 328 : (1985) 152 ITR 308 (SC) : TC 25R.910, the point no longer remains debitable. Therefore, the provisions of s. 154 of the Act are clearly applicable to the present case. That being the position, we answer the question referred in the negative, in favour of the Revenue and against the assessee.

These references are, accordingly, disposed of.

[Citation : 249 ITR 345]