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2010 (4) TMI 682 - AT - Income TaxRectification of mistake - The Assessing Officer has mentioned that revised estimate filed by assessee reducing the taxable income under section 115JB is rejected – On the ground that the revision of income is permissible in accordance with section 139(5) within one year from the end of relevant assessment year or before the completion of the assessment whichever is earlier - CIT(A) in his order dated 13-12-2004 has allowed the claim of the assessee with regard to the sum of Rs. 25 crore claimed in the revised claim of the assessee but has directed that the same should be taxed as capital gains. - Held that: - This mistake committed by the Assessing Officer at the stage of giving effect to the ITAT order has been made good by passing the order under section 154 dated 25-6-2007. It is clear that this is a mistake apparent from record and covered by the provisions of section 154 of the Act. It is true that in the course of assessment proceedings on 18-3-2004, after the expiry of time allowed under section 139(5), the assessee had filed a revised plea making certain additional claims and denying the liability under section 115JB of the Income-tax Act. However, it is to be noted that the revised plea was categorically rejected by the Assessing Officer in his assessment completed on 30-3-2004. - Though the assessee had filed grounds before the CIT(A) with regard to rejection of recast profit and loss account and revised Form 29B, the CIT(A) had not decided the issue as regards to MAT liability in favour of assessee. Therefore, we are of the view that the finding of the CIT(A) in his order dated 12-5-2009 that “I am of the opinion that the issue relating to tax payable under section 115JB at Rs. 38,26,607 in the original return has been decided in favour of the appellant by the CIT(A)” is erroneous. In case the action of the Assessing Officer is not sustained, the assessed income would fall below the returned income under section 115JB of the Act, which is not permissible as per the dictum laid down by the Hon’ble Supreme Court in the case of CIT v. Shelly Products (2003 -TMI - 6120 - SUPREME Court) – Appeal is allowed
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