Section 154 of the Income Tax Act, 1961 — Rectification of mistake — Assistant Commissioner has divested himself of the power of amendment and in view of the plain language of section 154, there is no embargo on the power of amendment if an appeal or revision is merely pending, therefore, the rejection of the rectification application on this ground was unwarranted.[2019] 51 ITCD 109 (BOM)
Facts: The Petitioner had filed an application for rectification of the Income tax assessment order. Assistant Commissioner rejected it. The Commissioner held that since the Petitioner had filed an statutory appeal, it would not be proper to decide the rectification application.
Held, that section 154(1A) provides that where if any matter has been considered and decided in any proceeding by way of appeal or revision, contained in any law for the time being in force, such order shall not be amended. Section 154 (1A) thus places an embargo on the power of rectification in the cases where the matter has been considered and decided in appeal or revision. It is of importance that the legislature has used the phrase 'considered and decided' in the past tense. The phrase 'considered and decided' cannot be read as 'pending consideration in appeal or revision'. To do so would be adding and changing the plain language of the statute. By modifying and adding the words, in this manner, which is not permissible, the Assistant Commissioner has divested himself of the power of amendment. In view of the plain language of section 154, there is no embargo on the power of amendment if an appeal or revision is merely pending. The rejection of the rectification application on this ground was unwarranted. We are informed that the Appeal is still pending. The Assistant Commissioner has failed to exercise the jurisdiction vested in him and thus the impugned order will have to be set aside and the application will have to be decided. The Writ Petition succeeds. The impugned order  is quashed and set aside. The rectification application filed by the Petitioner under section 154 of the Income Tax Act, 1961 stands restored to the file of Assistant Commissioner of Income Tax to be disposed of on its own merits.