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2017 (1) TMI 855 - HC - Income TaxObligation on the part of Assessing Authority to issue a notice to the assessee inviting attention towards defect in the return under Section 139 (9) - Held that:- The first question with regard to Section 139(9) of Act 1961, does not arise, for the reason that Assessing Authority has not rejected Return for any defect therein and in fact the revised Return filed by Assessee on 21.01.1993 was taken and thereafter Returning Authority proceeded to make assessment by means of order dated 13.12.1994. Hence Section 139(9) has no application. Therefore, as agreed by learned counsel for both parties, we find that question 1 does not arise from impugned judgment. Rectification of mistake - assessed loss and unabsorbed depreciation to be carried forward and treat return as a valid return in absence of Section 139(9) - Held that:- CIT(A) in fact, considering various submissions advanced by Assessee on merits, has virtually changed earlier order and now allowed appeal and directed Assessing Officer to allow assessed loss and unabsorbed depreciation to be carried forward and treat return as a valid return in absence of Section 139(9) of Act 1961 and thereby has virtually reviewed earlier assessment. This approach of CIT(A) in passing order dated 21.09.2000 under Section 154 is found patently illegal and without jurisdiction. Since in the garb of rectification of mistake, CIT(A) could not have reviewed its earlier order. Therefore, in the appeal preferred by Revenue, Tribunal has rightly allowed appeal and set aside order passed by CIT(A). As in the garb of rectification of mistake, no authority has jurisdiction to review an earlier order and pass fresh order having effect of changing order in its result and on various other aspects. This cannot be said to be a mistake apparent on the face of record. We therefore, answer question against appellant-Assessee and in favour of Revenue.
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