TMI Blog2012 (7) TMI 743X X X X Extracts X X X X X X X X Extracts X X X X ..... e the assessee’s total income includes the income from the taxable Securities Transactions, the assessee is entitled to a deduction of the amount equal to the STT paid by him in respect of the taxable Securities Transactions entered into in the course of business during the previous year - the tax liability as per MAT provisions was Rs.7,56,694 and rebate admissible under section 88E was Rs.26,98,260, therefore no prejudice was caused to the revenue by non-consideration of provisions of section 115JB by Assessing Officer - Once the assessment order is neither erroneous nor prejudicial to the interest of revenue, CIT has wrongly invoked the revision proceeding u/s. 263 - in favour of assessee. - I .T.A. No.342/ Kol./2012 - - - Dated:- 28-6 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ld. counsel appeared on behalf of the assessee and Shri A.K. Mahapatra, ld. D.R. represented on behalf of the Revenue. 4. I t was submit ted by the ld. A.R. that the issue in the appeal was against the action of ld. CIT in invoking his powers under sect ion 263 to set aside the assessment order passed by the Assessing Officer under sect ion 143(3) and 115WE(3) dated 29.12.2009 on the ground that the Assessing Officer had not considered the fact that the assessee had paid lesser tax than it was obliged to do under MAT. I t was the submission that the issue was squarely covered by the decision of the coordinate Bench of this Tribunal in the case of Ganeshyam Securities (Pvt. ) Ltd., Kolkata-vs. I.T.O. in ITA No. 1108/Kol./2011 dated 30.1 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he duty of the Assessing Officer to keep the issue alive in the assessment order. I t was the submission that as the Assessing Officer had not considered this issue when passing the assessment order under sect ion 143(3) and 115WE(3) dated 29.12.2009, the ld. CIT was right in law in invoking his powers under section 263. I t was the submission that though it has not been specifically mentioned that the order of the Assessing Officer was erroneous and prejudicial to the interest of revenue, the reading of the order of ld. CIT clearly indicated that the order under sect ion 263 was being passed because the assessment order passed in the case of the assessee was erroneous and prejudicial to the interest of revenue. I t was the submission that ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... referred to in section 5, computed in the manner laid down in this Act. Section 5 of the Income Tax Act, 1961 defines the scope of the total income of a resident or a non-resident person. The total income of the assessee has to be computed under the regular provisions of the Income Tax Act, 1961 and in the case of a company it can be arrived at both under the regular provisions of the Income Tax Act and under the deeming provision under section 115JB of the Act. It has been provided that where the income tax payable by the assessee on the total income computed under regular provisions of the Act is less than 7 1/2% of the book profit prepared in accordance with the Companies Act, the higher of the tax i.e. the book profit shall be deemed t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ssee s appeal is thus allowed and the Assessing Officer is directed to give rebate under section 88E for the STT paid by the assessee. Since this issue is squarely covered in favour of the assessee on merits, there is no question of any revision on this aspect by CIT of the assessment order. Once the assessment order is neither erroneous nor prejudicial to the interest of revenue, CIT has wrongly invoked the revision proceeding u/s. 263 of the Act. It is well settled law that ld. CIT can revise an assessment order only when it is both erroneous and prejudicial to the interest of revenue. The decision in the case of M/s. Lotus Capital Financial Services Ltd. was rendered following the decision of Bangalore Bench in the case of M/s. Horizon ..... X X X X Extracts X X X X X X X X Extracts X X X X
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