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2019 (4) TMI 403 - AT - Income TaxRectification of mistake u/s 154 - Reopening of assessment u/s 147 - reopening after expiry of 4 years - whether there was no failure on the part of the assessee to disclose any material or information necessary for assessment 143(3) - determination of claim of losses while passing order u/s. 143(3) for the assessment year 2006-07 on the basis of the original return of income filed by the assessee - HELD THAT:- Referring provisions of section 147 we find that the AO has failed to substantiate that how there was escapement of income after expiry of 4 years as there was no failure on the part of the assessee to disclose any material or information necessary for assessment 143(3) of the act. No substance in the decision of CIT(A) holding without any reason that the order passed u/s. 154 by the assessing officer on 26-11-2010 allowing carry forward of loss was not sustainable in law. We observe that the assessing officer has completed the assessment for the assessment year 2005-06 on 06-12-2007 and addition to income was made u/s 40(a)(ia) as the amount of TDS was paid after the specified due date. Therefore, the assessee has filed the revised return of income for the assessment year 2006- 07 within the stipulated time claiming increased amount of losses, however, the assessing officer inadvertently determined the claim of losses while passing order u/s. 143(3) for the assessment year 2006-07 on the basis of the original return of income filed by the assessee. When the matter was brought to the notice of the assessee as elaborated above he has rectified the apparent error by passing order u/s. 154 of the act in the assessment year 2007-08 vide which the claim of the losses of the assessee was allowed. AO has rectified the mistake u/s. 154 of the act and correctly allowed the claim of set off of carried forward business/depreciation, therefore, we are not inclined with the unjustified finding of the CIT(A). Considering we allow the ground of appeal of the assessee for assessment years 2007-08 to assessment year 2008-09. In the result, all the grounds appeal of the assessee are allowed.
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