TMI Blog2022 (12) TMI 458X X X X Extracts X X X X X X X X Extracts X X X X ..... sent appeal is directed at the instance of the assessee against the order of the learned Commissioner of Income Tax (Appeals) - 21, Kolkata (hereinafter the ld. CIT(A) ) dt. 30/09/2021, passed u/s 250 of the Income Tax Act, 1961 ( the Act ), for Assessment Year 2014-15. 2. The assessee has raised the following grounds of appeal:- 1. That the Ld. CITA) erred in confirming the action of the Ld. AO in rejecting the assessee's rectification petition filed u/s 154 claiming the Subsidy received by the assessee as Industrial Promotion Assistance (IPA) from the state Govt. under West Bengal Industrial Promotion (Assistance to Industrial Units) Scheme, as Capital Receipt in place of Revenue Receipt. The claim of the assessee was rejected by the Ld. AO as well as the Ld. CIT(A) on the ground that the same cannot be claimed by the assessee in the rectification petition u/s 154 since the same was not claimed in the return of income filed by the assessee in view of the decision of Hon'ble Apex Court in case of Goetze India Ltd. vs CIT in 157 Taxman 1. The Ld. CIT(A) did not consider the fact that the assessee's case is squarely covered by judicial decisions on similar facts ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Act. 3.1. Aggrieved the assessee preferred an appeal before the ld. CIT(A) but again failed to succeed. Similar view was taken by the ld. CIT(A) that, since the issue referred in the application u/s 154 of the Act is not a mistake apparent on record, the said claim, even having merit, cannot be claimed at this stage and cannot be rectified u/s 154 of the Act. 4. At the outset, the ld. Counsel for the assessee submitted that, the issue raised in the instant appeal is squarely covered by the decision of this Tribunal in the case of Shri Ritum Jain vs. DCIT in ITA No. 466/Kol/2021; order dt. 30/03/2022, wherein similar claim being made through rectification u/s 154 of the Act has been allowed by the Tribunal, directing the assessing officer to exclude these sales tax subsidy received from the Government from the total income offered by the assessee for taxation. Reliance was also placed on various other decisions and reference made to other details contained in the index paper book containing 83 pages. Per contra, the ld. D/R vehemently argued supporting the orders of the lower authorities. 5. We have heard rival contentions and perused the record placed before us. 6. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... oncerned, we note that the assessee in this case has not made any fresh claim of deduction etc. before the Assessing Officer. What the assessee has pleaded is that, in fact, the income returned by the assessee did not fall in the definition of income as per the provisions of the Income Tax Act. The said receipt of the assessee was non-taxable at all. It is not a case of making any fresh claim rather it is a plea of inadvertently offering for taxation a capital receipt which was non-taxable at all. The taxation of a capital receipt which did not constitute income of the assessee, in our view would constitute a mistake apparent on record. The Hon ble Delhi High Court in the case of Vijay Gupta vs Commissioner of Income Tax WP(C) 1572/2013 vide order dated 23rd March, 2016 has deliberated upon various case laws and also on the Article 265 of the Constitution of India to hold that no tax can be levied or collected except by the authority of law and that if the assessee has by mistake or inadvertence or on account of ignorance, included in his income any amount which is non-taxable or is not income within the contemplation of law, the assessee may bring the same to the notice of th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on or on not being properly instructed is over assessed, the authorities under the Act are required to assist him and ensure that only legitimate taxes due are collected. 21. The Bombay High Court in Nirmala L. Mehta v. A. Balasubramaniam, C.I.T. (2004) 269 ITR 1 held that there cannot be any estoppel against the statute. Article 265 of the Constitution of India in unmistakable terms provides that no tax shall be levied or collected except by authority of law. Acquiescence cannot take away from a party the relief that he is entitled to where the tax is levied or collected without authority of law. 22. Circular No. 14(XL-35) of 1955, dated 11.4.1955, issued by the Central Board of Direct Taxes and relied upon by the Petitioner reads as under: Officers of the department must not take advantage of ignorance of an assessee as to his rights. It is one of their duties to assist a tax payer in every reasonable way, particularly in the matter of claiming and securing reliefs and in this regard the officers should take the initiative in guiding a tax payer where proceedings or other particulars before them indicate that some refund or relief is due to him. This attitude woul ..... X X X X Extracts X X X X X X X X Extracts X X X X
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