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2023 (12) TMI 760 - AT - Income TaxRectification of mistake u/s 154 - deduction u/s. 10A denied on the component of refund of service tax received by the assessee - scope of debatable issue - as contended that the issue whether service tax refund would be considered as ‘profits/gains derived from the eligible undertaking’ is a subject matter of debate, in respect of which two views are possible, therefore, refund of service tax could not be a subject matter of rectification u/s 154 for the purpose of disallowing claim u/s. 10A - whether there is a mistake apparent from record in respect of refund of service tax? - HELD THAT:- From the perusal of the assessment order passed u/s. 143(3) and the queries raised by the Ld. AO and submissions made by the assessee thereon vis-à-vis refund of service tax forming part of claim u/s. 10A, we note that Ld. AO had passed the original assessment order after examining the details furnished by the assessee. He did not dispute the computation made by the assessee which included refund of service tax in the claim made u/s. 10A. From the perusal of the impugned order passed u/s. 154 read with sec. 143(3) of the Act, we note that Ld. AO has formed a view after a long drawn process of reasoning passed on the decision of Hon’ble Supreme Court in the case of Liberty India [2009 (8) TMI 63 - SUPREME COURT] and Sterling Foods [1999 (4) TMI 1 - SUPREME COURT] to dislodge the claim of the assessee in respect of refund of service tax. View taken by the Ld. AO in the proceedings initiated u/s. 154 tantamount to a change in view resulting into review of his own order which is not permissible under the provisions of section 154 of the Act. When the Ld. AO has consciously taken a view to frame the original assessment by making certain additions/disallowances, he is not empowered to take contrary view by adopting a review process for the assessment already completed. We are in agreement with the submissions made on the restricted powers available u/s. 154 to rectify a mistake which is apparent from record, which cannot be otherwise resorted to under the garb of review or reconsideration of the order already passed. It is well settled law that a power to rectify a mistake does not include a power to review which can be exercised only where the statute itself grant such power. In the absence of grant of such power of review under the said section, it is not possible for the Ld. AO to review his own order. Thus, AO is not justified in adopting provisions of section 154 which deals with rectification of a mistake apparent from record which in the present case is on a technical issue i.e. allowability of exemption u/s. 10A in respect of receipt of refund of service tax. To buttress our decision, we find force from the decision of Saurashtra Kutch Stock Exchange Ltd. [2003 (3) TMI 70 - GUJARAT HIGH COURT] We hold that Ld. AO is not justified in resorting to rectification u/s. 154 on a debatable issue. Decided in favour of assessee.
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