TMI Blog2014 (7) TMI 870X X X X Extracts X X X X X X X X Extracts X X X X ..... t to be further rectified and which is impermissible - when the Revenue did not take the matter further from the initial stage and against the order dated 24.07.2006 - the nature being understood in the factual backdrop and particularly the orders of the Authorities - the order is rendered in the backdrop of the facts peculiar to the Assessee – Decided against Revenue. - Income Tax Appeal No.128 of 2012, Income Tax Appeal Nos.134/2012, 135/2012 and 136/2012 - - - Dated:- 3-7-2014 - S. C. Dharmadhikari And B. P. Colabawalla,JJ. For the Appellant : Mr. Vimal Gupta, Ms. Padma Divakar For the Respondents : Mr. J. D. Mistry, Mr. P. C. Tripathi, Mr. Raj Darak JUDGMENT P. C. 1. In these Appeals, the order of the Income Tax Appellate Tribunal in favour of the Assessee is challenged by the Revenue. 2. Insofar as the Income Tax Appeal No.128/2012 is concerned both sides agree that if we note the facts therefrom, then, they are common to the questions that have been formulated by the Revenue and termed as substantial questions of law. Therefore, the facts in every Appeal need not be adverted to. 3. Mr.Gupta, learned Senior Counsel appearing in support of this ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nal interalia held that there was no mistake apparent on the face of the record to warrant passing of the rectification order dated 09.05.2008. That is how the Revenue is in Appeal. 6. Mr.Gupta submits that the only substantial question of law is formulated at page 4 of the paper book because it is the Assessee who was at fault. The Assessee had deducted the rental income and therefore, was bound by its stand that the explanation (baa) which is an explanation for the purpose of Section 80HHC is applicable. In that regard our attention is invited to this explanation and it is submitted by Mr.Gupta that the Assessee could not have then shifted this stand and claimed that this explanation (baa) for the purpose of Section 80HHC could not have been invoked and applied as Section 115JB was a stand alone provision. The Assessee then could not have argued that the issue was debatable and beyond the powers conferred in the Assessing Officer under Section 154 of the Income Tax Act, 1961. The order only deletes the excess relief to the Assessee which was contrary to the statutory provisions. There could not have been any estoppel against law or statute. Therefore, something which was appar ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e Court in the case of Ajanta Pharma Ltd. v/s Commissioner of Income Tax reported in 2010 (327) ITR 305 (SC). He, therefore, submits that the Appeal does not raise any substantial question of law and looked at from any angle. It should, therefore, be dismissed. 8. We have perused the impugned order and annexures to the memo of appeal with the assistance of the learned Senior Counsel appearing for the parties. We have also noted the legal provisions and decisions which have been brought to our notice. 9. It has been throughout urged by the Revenue that the Assessee s Appeal deserves to be dismissed. It was specifically urged that the direction given by the Commissioner of Income Tax (Appeals) was to allow the deduction under Section 80HHC on the profit as per the accounts and not on profit computed as per normal provisions of the Income Tax Act, 1961. However, there was nothing in this order to suggest that the adjustment as per the explanation (baa) to Section 80HHC would not be applicable while computing the book profits. The Assessing Officer noted that while computing the deduction under Section 80HHC on the book profit the Assessee has reduced 90% of the rent income. Ther ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... reducing the profits of the business by 90% of other income such as interest, profit from sale of investments, etc. As rightly contended on behalf of the assessee before the learned CIT (A) as well as before us, a specific direction was given by the learned CIT (A) in his order dated 24.03.2003 to the Assessing Officer to compute deduction u/s 80HHC for determining the book profit of the assessee u/s 115JA with reference to the profit as per the accounts and not to restrict the same to the amount computed and allowed under the normal provisions of the Act. Keeping in view this specific direction given by the learned CIT (A), it cannot be said that there was any mistake in the order dated 29.07.2006 passed by the Assessing Officer while giving effect to the order of the learned CIT (A) in not reducing the profits of the business by 90% of the other income for the purpose of computing deduction u/s 80HHC calling for any rectification u/s 154. In our opinion, there was thus no mistake in the order passed by the Assessing Officer on 24.07.2006 giving effect to the order of the learned CIT (A) on this issue warranting any rectification u/s 154. We also agree with the learned CIT (A) th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... then, all the more the Tribunal was right in concluding that in the limited nature of the proceedings the Assessing Officer could not have referred to the legal provisions, initial stand of the Assessee and the judgment or orders of the Tribunal brought to his notice. He was not undertaking a fresh exercise nor was he undertaking an exercise enabling him to resort to any other provisions save and except under Section 154. If that was agreed and undisputed position, then, assuming that anything was debatable that could not have been decided in the limited proceedings. Their nature being understood in the factual backdrop and particularly the orders of the Authorities that we are of the opinion that any larger question or controversy need not be decided. So seen, we found that the order under challenge is essentially rendered in the backdrop of the facts peculiar to the Assessee before us. Beyond that we do not see that the Tribunal was required to go in detail. Since something more was argued and considered before the Tribunal that does not mean that we are obliged to entertain the Appeals of the Revenue. It would be open for the Revenue to raise the legal question in an appropriat ..... X X X X Extracts X X X X X X X X Extracts X X X X
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