The ITO has jurisdiction to rectify a mistake apparent from the record under s. 35 of the IT Act, 1922, even if the order was purported to be made under s. 154 of the IT Act, 1961.

V. RAMASWAMI, J.

The assessee in this case is a firm of partnership consisting of nine partners, registered under s. 26-A of the IT Act. For the asst. yrs. 1958-59 and 1959-60 the firm was assessed by orders dt. 30th December, 1961 under s. 23(3) of the IT Act, 1922. The business loss was determined at Rs. 1, 37, 674/- and Rs. 1, 51, 221/- respectively. The ITO also computed that the assessee firm derived capital gains of Rs. 22, 865/- and Rs. 58, 360/- respectively. But, in the original assessment order, the ITO did not set off the business loss against the capital gains and did not strike the net figure of loss Consequently, in the individual assessments of the partners, the ITO allowed deduction for the gross business loss apportioned in the ratio in which they were entitled to share profit and loss and brought to tax the share of capital gains as allocated to them. On the ground that a mistake apparent on the face of record has crept in the original assessment orders in that the business loss of the assessee was not set off against the income under capital gains as required by the provisions of s. 24(1) of the IT Act, 1922, the ITO initiated proceedings in 1965 and issued a notice under s. 154 of the IT Act, 1961. Ultimately, after considering the objection and in the view that there was a mistake apparent on the face of the record, the ITO revised the assessment order and set off the business loss against the capital gains and arrived at the net loss of Rs. 1, 14, 809/- and Rs. 92, 861/- respectively. The assessee preferred an appeal to the AAC and contended that the ITO had no jurisdiction to make the order under s. 154 of the IT Act, 1961, for rectifying the assessments made under the IT Act, 1922. The assessee also contended that there was no mistake apparent from the records which could be rectified under s. 154 of the IT Act, 1961. The AAC rejected both these contentions and held that the ITO had jurisdiction under s. 154 to revise the order made on 30th December, 1961. On a further appeal to the Tribunal it was held, relying on certain authorities, that for an assessment order made prior to 1st April, 1962, the rectification could be made only under s. 35(1) of the IT Act, 1922, and s. 154 of the IT Act, 1961 is not applicable. In that view, the Tribunal cancelled the order of rectification for each of these assessment years as made without jurisdiction. All the same the Tribunal gave a finding that there was a mistake apparent from the record, which could have been rectified by the ITO under s. 35(1) of the IT Act, 1922. At the instance of the Revenue, the following question has been referred :

"Whether on the facts and in the circumstances of the case, the Tribunal was right in law in cancelling the order of rectification made on 10th December, 1965 under s. 154 of the IT Act, 1961 as illegal ?" *

2. Sec. 35(1) of the Indian IT Act, 1922 and s. 154 of the IT Act, 1961 are in pari materia. Both confer jurisdiction on an ITO for rectifying mistakes apparent from the record, the only difference being that an appeal is provided under IT Act, 1961 against an order under s. 154 but in the old Act no such provision of appeal was provided but only revision was competent. In this reference, it is not disputed and could not be disputed that the mistake in the original assessment in not setting off the business loss against the capital gains is a mistake apparent from the record within the meaning of s. 35 of the Indian IT Act, 1922. In fact, then Tribunal, as already stated had also given a finding that the mistake is of such a nature which could have been rectified under s. 35(1) of the Indian IT Act, 1922. Only on the ground that since the assessment order was made prior to 1st April, 1962, s. 154 of the IT Act, 1961 was not applicable the Tribunal cancelled the order of rectification. It was contended by the learned Counsel for the Revenue that once the ITO and jurisdiction to make the order under s. 35, the r