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2017 (6) TMI 497 - AT - Income TaxRectification of mistake u/s 154 - tax payable u/s 115JB is higher than the tax liability under normal provisions - Held that:- No doubt the AO has applied the provisions of section 115JB treating the assessee as company as per section 2(17)(iii) of the Act. Whereas the assessee is a banking company as per the Banking Regulation Act, as the issue was debatable prior to amendment in Finance Act, 2012. The provisions of section 115JB, during that period before amendment, is applicable to those companies which prepares its P&L A/c in accordance with the provisions of Part - II of Schedule - VI of the Companies Act, 1956. It is a fact that assessee has never followed Part - II of Schedule - VI to the Companies Act, 1956 and also its financial statements are not placed before Annual General Meetings. Accordingly, provisions of section 115JB are not applicable to the assessee. The same view was confirmed by various judicial pronouncements and also in assessee's own case for AY 2007-08 by the coordinate bench of this Tribunal. Rectification is possible when other parties agrees that it has no two possible views. Hence, rectification order passed by the AO is wrong considering the fact that the issue involved is disputed one as various Tribunals has given finding that provisions of section 115JB are not applicable to a banking company prior to amendment in finance Act, 2012. Prior to amendment of Finance Act, the issue was settled in favour of the assessee, even though, the issue was raised by the AO in the original assessment order. As issue involved in the rectification order is a debatable issue, accordingly, rectification order passed by the AO is not proper. - Decided against revenue
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