1. K. A. THANIKKACHALAM, J.----In compliance with the direction given by this Court in T.C.P. Nos. 58 and 59 of 1978, dated November 9, 1978, the Tribunal referred the following question,. For the assessm ent years 1966-67 and 1967-68, for the opinion of this Court, under section 256(2) of the income Tax Act, 1961 (hereinafter referred to as the "Act"): "Whether, on the facts and in the circumstances of the case, the Tribunal was right in holding that the mistake sought to be rectified by the Income-tax Officer under section 154 of the Income-tax Act was not an apparent one in the case of the assessee for the assessment years 1966-67 and 1967-68?"
2. On appeal, the Appellate Assistant Commissioner held that the provisions of section 154 would not apply to the facts of this case, since the issue involved was highly debatable. On further appeal, filed by the Revenue before the Tribunal, it was held that the Appellate Assistant Commissioner was correct in holding that the provisions of section 154 of the Act would not apply to the facts of this case. Accordingly, the Revenue's appeal was dismissed.
3. Before us, learned standing counsel appearing for the Department, relying upon role 19(3) and sub-clause (a) of the proviso there under, submitted that the tax under section 140A would become due when the payment first became due. According to learned standing counsel even though under section 140A the assessee shall pay the tax so payable within 30 days of furnishing the return, the tax would become due on the day when the payment first became due. Learned standing counsel submitted that there cannot be any debate or long drawn process of reasoning involved in understanding when the tax under section 140A would become due. Hence, it cannot be said that section 154 will not apply to the facts of this case. Inasmuch as the self-assessment tax payment was due as on the last date of the accounting year when the return is liable to be submitted, if it is not paid within that period, the self-assessment tax liability under section 140A of the Act would become a debt, and therefore, cannot be included in the capital base for granting relief under section 84 of the Act. It was, therefore, submitted that the Tribunal was not correct in holding that there is no mistake apparent from the record, warranting application of the provision under section 154 of the Act. On the other hand, learned counsel appearing for the assessee, while supporting the order passed by the Tribunal, submitted that inasmuch as there are two views possible in the matter when the payment of section 140A tax would first become due, section 154 of the Act cannot be invoked.
4. We have heard both learned standing counsel appearing for the Department as well as learned counsel appearing for the assessee. The fact remains that in both the assessment years 1966-67 and 1967-68 the assessee is liable to pay Self-Assessment tax under section 140A of the Act.
5. According to the Department, self-assessment tax would become due on the date when the return was filed under section 139 of the Act. Such payment of tax would become due on the date of furnishing the return. Even though under section 140A the assessee can pay such a tax within 30 days from the date of filing the return under section 139, it would not mean that the tax would become due first after the expiry of 30 days.
6. For the purpose of granting relief under section 84 of the Act, the Income-tax Officer, in the original assessm ent, failed to deduct the self --assessment tax which was due on the date when the returns were filed. Hence, he invoked the provisions of section 154 of the Act and notified the mistake and deducted the tax due as a debt in the capital base for the purpose of granting relief under section 84 of the Act.
7. The point for consideration is, whether section 154 of the Act would apply to the facts of this case.
8. When there is a mistake apparent from the records, section 154 of the Act would apply. The mistake apparent on the record must be an obvious and patent mistake and not something, which can be established by a long drawn process or reasoning on a point on which there may be conceivably two opinions. In the present case, admittedly, the self-assessment tax under section 140A of the Act for both the assessm ent years under consideration was not paid on the date of filing- the return under section 139; presumably section 140A tax might have been paid within 30 days from the date of furnishing the return. 'This can be vouchsafed, since there was no penalty proceeding for non- payment of tax under section 140A.
9. Section 140A of the Act as originally inserted by the Finance Act, 1964, with effect from April, 1, 1964 stood thus- 140A. Self-Assessment.--(J) Where a return has been furnished under section 139 and the tax payable on the basis of that return as reduced by any tax already paid under any provision of this Act exceeds rupees five hundred, the assessee shall pay the tax so payable within thirty days of furnishing the return. "
10. Therefore, under section 140A, the assessee can pay the self-- assessment tax within 30 days after furnishing the return under section 139 of the Act. Now it remains to be seen whether the self- assessm ent tax would become due soon after the filing of the return under section 139 or after the expiry of 30 days given for payment of self-assessment tax. Rule 19(3), sub-clause (a) of the proviso there under states that "in the case of any advance tax due under the provisions of the Act or of any tax payable under section 140A or under section 141, on the date on which, under the provisions of section 211 or section 212 or section 213 or section 140A or section 220, as the case may be, the payment first-becomes due." Now what is to be considered is, when the payment first became due, payable under section 140A of the Act. Section 140A did not say that the self- assessm ent tax is payable on the day when the return was filed under section 139 of the Act. In fact, it says that the self-assessm ent tax is payable within 30 days from the date of furnishing the return under section 139 of the Act. Therefore, a reading of section 140A and rule 19(3), sub-clause (a), to the proviso there under would go to show that the mistake which occurred in the present case is not apparent, obvious or patent, to warrant application of section 154 of the Act. The tax payable under section 140A would first become due at what point of time is highly debatable and something, which can be established only by long drawn process of reasoning. Therefore, .The Tribunal was correct in saying that section 154 of the Act will not be applicable to the facts of this case. In view of the foregoing discussion we answer the question referred to us in the affirmative and against the Department. No costs.