2023 (10) TMI 41 - GUJARAT HIGH COURT

Rectification of mistake u/s 154 - Period of limitation - Revenue issued notice u/s 154 to deny deduction u/s 10A - Rectification proposed on the ground that, benefit of 10A deduction should be given on the basis of individual eligible unit and not after clubbing the business profits and losses of all the units. - whether issue of deduction u/s 10A was not a subject matter of appeal before the CIT(A) for the said year and therefore there was no question of making any mistake while passing the OGE? - HELD THAT:- Considering the issue and disposing of the matter before it, only on the ground of limitation, the Division Bench of this Court in Poonjabhai Vanmalidas [1978 (2) TMI 73 - GUJARAT HIGH COURT] held that even after an appeal from an order of assessment is decided, a mistake in that part of the order of assessment which was not the subject matter of review by the Appellate Authority and was left untouched can be rectified, however, that part of the order which is sought to be rectified is the untouched part of the original order.

Applying it to the facts of the case, what is evident is that the assessment order was dated 02.02.2012. In an appeal to the CIT(A) there was no dispute regarding Section 10A. The relief was granted in appeal on 27.08.2014. There too there was no dispute regarding Section 10A provision. The order giving effect was date 31.03.2015. Here also since benefit of 10A was ‘as per assessment order’, as held in the case of Poonjabhai Vanmalidas [1978 (2) TMI 73 - GUJARAT HIGH COURT] in relation to issues not appealable, the order of the appellate authority does not subsume the original order and the time for correcting the mistake in the original order has to relate back to passing of the original order and not the appellate order.

In the case of Mettur Chemical & Industrial Corpn. Ltd. [1976 (4) TMI 25 - MADRAS HIGH COURT] has held that where proceedings are initiated under Section 147, period of limitation for rectification of mistake has to commence and computed from the date of original assessment and not from the date of reassessment order.

In facts of the present case, the issue was with regard to the interpretation of the decision in the case of Yokogawa India Ltd. [2016 (12) TMI 881 - SUPREME COURT] as settled the controversy on whether the provisions of Sections 10A/10B/10AA are deduction provisions or exemption provisions. A question of interpretation therefore would not make it an issue of a mistake apparent from record.

Having held that the notice under Section 154 of the Act is barred by limitation, that it was a debatable issue not therefore within the parameters of Section 154 of the Act, the notices u/s 154 of the Act are bad. Even on the parameters of interpretation, notice u/s 263 in one of the petitions must also fail. Petition allowed.