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2012 (10) TMI 58 - HC - Income TaxUnverifiable transactions - Disallowance under Section 40(a)(ia) - ITAT deleted the addition - Held that:- The Tribunal come to the conclusion that when the assessee paying more tax under Section 115 JB and even observed that it is no body's case that the regular assessment under the provisions of Section 143(3) would have fetched more tax to the Revenue. No reason for any such observation when Tribunal was of the view that neither the A.O. nor the C.I.T. (Appeal) had appreciated the facts. The Tribunal also ignored this fact that the A.O. and C.I.T.(Appeal), both considered each and every fact, which is required to be considered under Section 143(3) and then in that situation, merely because of the one line in the operative part of the order contrary to the specific facts mentioned in the first para that the case is duly processed under Section 143(1)(a), the Tribunal should not have directed the A.O. to rectify the demand notice under Section 115JB and the Tribunal held in this way. Thus ITAT has erred by holding that the AO has not made the impugned additions under the regular provisions of the Act, obviously, under Section 143(3) & also committed error of law in upholding the deletion of addition of Rs.7,49,672/- and Rs.34,44,754/-. A.O. should have considered the plea of the assessee also before holding that he is proceeding under Section 143(1)(ia), and in pursuance of notice under Section 143(2) and 142(1), but he should have considered the asseess's claim under Section 115JB, which has not been and as such, rejected the plea of the assessee in spite of taking note of the fact that assessee has shown the book profit of Rs.2,05,86,930/- under Section 115JB - The matter is remanded to the A.O. for fresh consideration to decide whether the assessment is required to be made under Section 115JB or under Section 143(3) - in favour of assessee by way of remand.
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