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2018 (8) TMI 1719 - ITAT MUMBAIRectification of mistake - Rebate claim u/s 88E - computation of rebate u/s 88E was allowed by the AO while framing assessment under section 143(3) - as per AO assessee has also earned income by way of short term capital gains on which the assessee has paid STT and therefore, while computing the rebate, income from such short term capital gains should have to be reduced - Held that:- Section 88E of the Act provides where the total income of the assessee in previous year includes any income chargeable under the head of “profits and gains of business or profession” arising from transaction chargeable to securities transaction tax, he shall be allowed deduction of an amount equal to the securities transaction tax paid by him in respect of transactions chargeable to securities transactions tax entered into in the course of business during that previous year. From the amount of income tax on such income arising from such transaction. An assessee is eligible for deduction from the amount of income tax on such income arising from such transactions computed in the manner provided in section 88E of the Act i.e. an equal amount to the securities transaction paid by him in respect of taxable securities transaction entered into in the course of business during the previous year. It means that the issue has two plausible views and once, it is doubtful issue, the AO cannot resort to section 154 of the Act i.e. rectification of mistake apparent from record. Accordingly, we reverse the orders of the lower authorities and allow the appeal of the assessee. - decided in favour of assessee.
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