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2021 (9) TMI 233 - AT - Income TaxRectification u/s 154 - Nature of receipt - revenue or capital receipt - benefit in the form of excise duty subsidy - Whether issue falls u/ s 154 or not? - what constitute mistake apparent from record - whether, a Supreme court judgment delivered at later point of time after passing or order can constitute mistake apparent from record or not, whether income tax authority can amend any order, if there is any mistake apparent from record with relevance to a later judgment? - HELD THAT:- We find that in the case of DCIT vs. M/s Kashmir Steel Rolling Mills [2015 (1) TMI 1265 - ITAT AMRITSAR] held on identical facts that non consideration of order of jurisdictional high court constitute mistake apparent from record.- also Further, the Co-ordinate Bench of ITAT Mumbai in the case of Nulux Engineers vs. DCIT [2018 (10) TMI 1908 - ITAT MUMBAI] held that non-consideration of the decision of Hon’ ble Supreme Court as well as subsequent interpretation of law by Hon' ble Supreme Court and its non- consideration by Revenue in its order constitute mistake apparent from record which can be rectified u/ s 154 of the Act. Hon’ ble Supreme Court in the case ACIT vs. Saurashtra Kutch Stock Exchange Ltd. [2008 (9) TMI 11 - SUPREME COURT] held that non consideration of a decision of Jurisdictional High court or Supreme court can be said to be a 'mistake apparent from record' which can be rectified under section 254(2). After considering the above circular and judicial pronouncements, we hold that the petition submitted by the assessee falls within the scope of section 154. Whether Excise Duty refund is capital or revenue receipt ? - Hon' ble High Court of J& K in the case of Shree Balaji Alloys [2011 (1) TMI 394 - JAMMU AND KASHMIR HIGH COURT] held that Excise duty refund, Interest subsidy and Insurance subsidy received with the object of creating avenues for perpetual employment, to eradicate the social problem of unemployment in the state by accelerated industrial development is capital receipt - we find no dispute that the Excise Duty refund received by the assessee is to be treated as capital receipt. Exclusion of capital receipts in computing Book profit u/ s 115JB - HELD THAT:- Only that receipt which forms part of the “income” are to be taxed. The capital receipts which are otherwise not subject to tax under the normal provisions of the Act are not envisaged to be taxed under the provisions of “Minimum Alternate Tax”. Once a receipt is not considered as income, the same cannot be subjected to tax under this Act as such receipt naturally classified under capital receipt. Which was never meant to be taxed cannot be taxed even u/ s 115 JB. The Hon’ ble Supreme Court in the case of Apollo Tyres Ltd. [2002 (5) TMI 5 - SUPREME COURT] held that the revenue cannot go beyond the net profit shown in the P&L account except to the extent provided in the Explanation to Section 115J. The Hon’ble High Court of Karnataka in the case of Hariram Hotels Pvt. Ltd. [2015 (12) TMI 1419 - KARNATAKA HIGH COURT] held that the capital receipts are not subjected to the provisions of Section 115JB.
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