TMI Blog2011 (12) TMI 642X X X X Extracts X X X X X X X X Extracts X X X X ..... tion, it is, inter alia, stated that delay was caused on account of wrong advise of Vishnu Lohia, which was subsequently corrected by Senior Counsel Shri A.K. Tibrewal, Shri Vishnu Lohia has confirmed these facts on affidavit, the appeal could not be preferred in time. We, therefore, condone the delay in filing the appeal. 3. Brief facts of the case are that the ld. CIT examined the assessment records for assessment year 2006-07 and noticed that the Assessing Officer had failed to invoke the provisions to section 115JB of the Income Tax Act. After considering the details he concluded that MAT of ₹ 7,56,694/- being the higher tax liability was required to be charged, which was not done at the time of completion of the assessment pro ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... as applicable under section 88 of the I.T. Act, 1961. The assessee s contention that the income-tax payable on total income would be gross amount of tax before allowing rebate was legally not tenable. (ii) The design of the income tax return shows that rebate under section 88E should be given first and then surcharge and cess are to be charged. Thus, it is clear that the gross amount of tax is the actual amount of tax payable by the assessee. Otherwise, surcharge and E.C. would have been charged before allowing rebate. (iii) The interpretation of the assessee that the phrase income tax payable by the assessee has not been specifically defined in the Act and in ordinary prudence, the same would mean that the income-tax which wo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ate of STT paid by the assessee is allowable from the income tax computed against the total income computed under section 115JB of the Income Tax Act, 1961. The term total income has been defined under the Income Tax Act, 1961 as the total amount of income 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 t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s 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 assessee 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. ..... X X X X Extracts X X X X X X X X Extracts X X X X
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