TMI Blog2023 (6) TMI 970X X X X Extracts X X X X X X X X Extracts X X X X ..... wan Kumar Chakrapani, AR For the Revenue : Shri K. Madhusudan, CIT-DR ORDER PER LALIET KUMAR, JM: The present appeal is filed by the Revenue against the order dated 01/08/2018 passed by the learned Commissioner of Income Tax (Appeals)-4, Hyderabad ( Ld. CIT(A) ) for the assessment year 2010-11. 2. At the outset, learned DR had drawn our attention to the order of the Tribunal passed in the case of assessee for the assessment year 2010-11, dt. 19/07/2021 in ITA No. 816/Hyd/2015 and others. It was submitted by the learned DR that the assessee in the said appeal sought relief against the order passed by the AO/Ld. CIT(A) before the Tribunal, however, for the reasons best known to the assessee, assessee had withdrawn the appeal stating that the assessee is not pressing the same. He drew our attention to paragraph No. 2 of the decision of the Tribunal, to the following effect: 2. Coming to the assessee s first and foremost appeal ITA No.816/Hyd/2015, learned counsel stated at the outset that he no more wishes to press for the same keep in mind the fact that necessary relief already stands granted to him in Section 154 rectification proceedings. Ordered accord ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... admitting the revised return of income. Against that assessment order, the assessee had preferred the appeal before the CIT(A) and the Ld.CIT(A), however, had dismissed the appeal of assessee on the ground that the assessee has not paid the admitted tax liability as required u/s. 249(4) of the Act vide order dt. 13/03/2015. The assessee after receiving the rejection order from the Ld.CIT(A), had filed 154 application before the AO and the AO has dismissed the 154 application of the assessee. Feeling aggrieved by the order of the AO, assessee had preferred the appeal u/s. 154 before the CIT(A). Ld.CIT(A) vide impugned order allowed the appeal of the assessee and the relevant findings of the Ld.CIT(A) are mentioned in para 8.1 to 8.3 as under: 8.1 The original appeal against the assessment order u/s. 143(3) as stated above was filed with regard to issue of agricultural income. But in the 154 application filed before the Assessing Officer, the appellant has raised the issue of not to treat an amount of Rs. 27,35,28,865/- as Income under Other sources after considering the revised return. This issue was explained by the appellant during the course of assessment proceedings also b ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t are accepted and the AO is directed to consider the income disclosed as per Revised Return of Income. 7. In our view, once the appeal of the assessee against quantum additions have attained finality upto the level of the Tribunal then question arises as to whether the AO can rectify the order passed by him on an issue which is highly debatable and after the order got a seal of approval from the Ld.CIT(A). In our view, the answer is NO since in our considered opinion, it will amount to re-visiting the order of the assessment, which has attained finality. Recently, in the identical facts, in the case of Shri Krishna Kumar D. Shah (supra), the decision relied upon by the learned DR, we had examined the law on the subject and after examining the same, we have heed that the AO has no power to re-visit the order passed by the Tribunal or/Ld.CIT(A). The relevant observation of the Tribunal reads as under: 18. From the bare perusal of section 154 of the order, it is clear that the power of rectification is given to the Assessing Officer to rectify any mistake which is apparent from the record. The immediate questions arise as to whether there was any apparent mistake in the ord ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... (iv) a local authority, and (vii) every artificial juridical person, not falling within any of the preceding sub-clauses. It is a matter for consideration whether the definition contained in section 2(31) of the Income-tax Act, 1961, is an amendment of the law or is merely declaratory of the law that was in force earlier. To pronounce upon this question, it may be necessary to examine various provisions in the Act as well as its scheme. Section 113 of the Income-tax Act, 1961, corresponded to section 17(1) of the Indian Income-tax Act, 1922, but that section has now been omitted with effect from April 1, 1965, as a result of the Finance Act, 1965. From what has been said above, it is clear that the question whether section 17(1) of the Indian Income-tax Act, 1922, was applicable to the case of the first respondent is not free from doubt. Therefore, the Income- tax Officer was not justified in thinking that on that question there can be no two opinions. It was not open to the Income-tax Officer to go into the true scope of the relevant provisions of the Act in a proceeding under section 154 of the Income-tax Act, 1961. A mistake apparent on the record must b ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... T.S. Balaram Income Tax Officer v. Volkart Brothers [1971] 82 ITR 50 (SC) 6. Mrs. M. Kiranmayee, learned standing counsel contends that the Assessing Officer in palpable contradiction to the ratio in KNR Constructions (supra), allowed deduction on the ground of depreciation after gross income was estimated at 12.5% on the main contractual receipts upon rejection of the books of accounts. Reliance is also placed on Indwell Constructions (supra) and it is argued in the event books of accounts are rejected, the same cannot be used to allow deduction on gross income. On the other hand, on behalf of the assessee, referring to the decision in Y. Ramachandra Reddy (supra) it is contended that depreciation is permissible even if the income is based on the estimation. Relevant portion of the said report reads as follows: If an assessee is entitled to claim deduction of interest, be it under section 36(1)(iii) of the Act or any other relevant provision and of depreciation under section 37 of the Act, in the ordinary course of assessment, there is no reason why the same facilities be not extended to him, merely because of the profit is determined on the basis of estimation as was ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... laneous petitions, if any pending in this appeal, shall stand closed. 20. The word any under the income tax authority is defined u/s 116 of the Act which includes the Assessing Officer and ld.CIT(A) and etc. However, the question which is required to be examined is whether the income tax authorities mentioned under section 116 of the Act can rectify any mistake in its order which is though not apparent but will have any effect of setting aside the order passed by the superior authorities. There cannot be any doubt that the income tax authority can rectify any apparent mistake in its order however, when the order of the Assessing Officer, has been upheld by the ld.CIT(A) and thereafter by the Tribunal, in that eventuality, Assessing Officer is denuded from rectifying any such mistake, as it would lead to giving unbridled power to Assessing Officer/ ld.CIT(A) to unsettled the settled position of fact and law and will lead to chaos and anarchy. 21. In the present case, after the Tribunal had dismissed the appeal of the assessee on merit, the Assessing Officer has rightly dismissed the rectification application filed by the assessee as the Assessing Officer was duty bound ..... X X X X Extracts X X X X X X X X Extracts X X X X
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