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2014 (9) TMI 273 - ITAT KOLKATARectification of mistake u/s 154 – Bar of limitation - Held that:- CIT(A) has held that the AO has not revised order dated 22.03.2005 but he has revised order dated 19.12.2006 passed u/s 245/251/143(3) of the Act - CIT(A) has also placed reliance upon Hind Wire Industries Limited Versus Commissioner of Income-Tax [1995 (1) TMI 2 - SUPREME Court] - "order" in the expression "from the date of the order sought to be amended" in section 154(7) was not qualified in any way, it did not necessarily mean the original order it could be any order including the amended or rectified order – there was no infirmity in the order of the CIT(A) on this issue – Decided against assessee. Merger of orders by AO – Held that:- The matter in appeal before the authorities below related to allowability of deduction u/s 80IB in respect of income arising from foreign exchange fluctuation, discount on purchase, interest received on FDR with bank, interest received from Super stockist for late payment, rent received from staff and job charges received - As against the above the matter which has been rectified pertains to allowances of 80IB deduction with respect to DEPB/duty draw back/export benefit - the aspect which has been rectified was not at all the subject matter of the appeal before the authorities below - section 154(1)(A) of the Act cannot come to the rescue of the assessee and the order of the CIT(A) is upheld – Decided against assessee. Following the precedent - Decision came subsequently much after filing of the return – Held that:- There was conflict of opinion as to whether DEPB/duty drawback/export benefit would come under the computation of profit eligible for deduction of section 80IB of the Act - at the time of filing of the return by the assessee there was conflict of opinion - The decision in M/s Liberty India Versus Commissioner of Income Tax [2009 (8) TMI 63 - SUPREME COURT] came much later and following the decision in Mepco Industries Ltd., Madurai Versus Commissioner of Income Tax & Anr [2009 (11) TMI 24 - SUPREME COURT] - there was a conflict of opinion prior to the decision and as such the mistake cannot be held to be a mistake apparent from the record to come under the ken of section 154 of the Act - rectification of the mistake apparent from record u/s 154 on this issue cannot be upheld – Decided in favour of assessee.
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