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2018 (9) TMI 1787 - AT - Income TaxRectification of mistake - non consideration of Apex court decision - Penalty u/s 271(1)(c) - treatment of loss declared by the assessee at ₹ 3,69,63,900/- to a profit of ₹ 34.63 lacs - Held that:- CIT(A) in its order while confirming and enhancing the amount of penalty had quoted the decision of the Hon’ble Apex Court in the case of Virtual Soft Systems Ltd [2007 (2) TMI 147 - SUPREME COURT OF INDIA] held that reduction of loss will also have to be taken into account while considering the quantum upon which the penalty is to be levied. Admittedly, in its order, as above, this Tribunal failed to take into account this order from the Hon’ble Apex Court and had held that reduction of the loss to nil by the ITAT would also result in non levy of penalty. In this regard, we note that in the case of Asst. CIT vs. Saurashtra Kutch Stock Exchange Securities Ltd. [2013 (10) TMI 310 - GUJARAT HIGH COURT] has expounded that non consideration of Hon’ble Apex Court decision even if it is not cited before the Tribunal would result in the order of the Tribunal suffering from mistake apparent from the record. Hence, in our considered opinion, in light of the above said Hon’ble Apex Court decision, a mistake apparent from the record has crept into the order of this Tribunal - Accordingly, we recall the aforesaid order. The Registry is directed to fix the case before the regular bench in the normal course of hearing.
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