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2021 (8) TMI 285 - AT - Income TaxRectification u/s 154 - exemption u/s 11 denied - HELD THAT:- CIT(A) while passing the order has categorically held that there is no violation of Section 13(1) and exemption u/s 11 and 12 of the Act is allowed to the assessee which is also registered u/s 12AA - Therefore, when once this issue has already attained finality by passing of the order by the ITAT dismissing the appeal of the Revenue, therefore, in our view, no obvious mistake of law, if any, cannot be rectified u/s 154. Whereas the mistake of fact which is apparent from the record can only be rectified u/s 154 as has already been held in the case of Venkatachalam (M.K.) ITO vs Bombay Dying & Mfg Co. Ltd. [1958 (4) TMI 4 - SUPREME COURT] and in the present case, the Revenue has failed to pinpoint the mistake of fact which is apparent from the record which needs invocation of the provisions of Section 154 of the Act. Therefore, in our considered view, under the above circumstances, CIT(A) has wrongly invoked provisions of Section 154 of the Act by passing the impugned order, thus the same is not sustainable in the eyes of law. With regard to development receipts, the said issue with regard to developments receipts was not decided by the ld. CIT(A) in the order. CIT(A) has allowed set off of carry forward losses against the development receipts - The issue was not decided on merits as according to the assessee, there was no taxable surplus after set off of carry forward losses - as pointed out before us that in the subsequent assessment order, the same issue was decided in favour of the assessee and the order has been placed on record - The findings regarding development receipts being capital receipts - In this way, this issue has already been decided in favour of the assessee and therefore, there was no question of raising this issue again in impugned rectification order passed by the ld. CIT(A). The income tax authorities have power of rectification u/s 154 but can only be exercised if there is mistake apparent from the record. However, exemption u/s 11 of the Act has already been allowed to the assessee continuously and the ld. CIT(A) has himself allowed the same to the assessee in his earlier orders. Provisions of Section 154 cannot be invoked. At the same time, CIT(A) cannot invoke provisions of Section 154 of the Act merely to deny the benefit to the assessee which otherwise has already been held to be allowable by the Revenue authorities in different years. In view of the above facts and circumstances, we set aside the order passed by the CIT(A) and allow this appeal of the assessee.
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