TMI Blog2010 (11) TMI 775X X X X Extracts X X X X X X X X Extracts X X X X ..... ich rectification under section 154 of the Act had been initiated stood crystallized in 1985, it cannot be said that the issue was debatable when Assessing Officer assumed jurisdiction to rectify order and rectification done was in order, no illegality is noticed in the order of the Tribunal and finding no merit in the appeal hence dismissed. - ITA NO 147/01 - - - Dated:- 18-11-2010 - ADARSH KUMAR GOEL, AJAY KUMAR MITTAL, JJ. Judgment: Ajay Kumar Mittal J.- 1. This appeal under section 260A of the Income-tax Act, 1961 (for short "the Act"), has been filed by the assessee against the order dated September 7, 2000, passed by the Income-tax Appellate Tribunal, Delhi Bench (A), New Delhi (in short "the Tribunal") in I. T. A. N ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... that deduction under section 80-I was worked out before setting off the brought forward losses, investment allowance and deduction under section 80G of the earlier years. The said mistake resulted in grant of excess deduction under section 80-I and in order to rectify the said mistake, a notice under section 154 of the Act was issued to the assessee in the year 1994. Finding that the assessee had nothing to say in the matter, the Deputy Commissioner of Income-tax, Karnal vide order dated September 29, 1994, annexure P-3, framed a revised computation of income under section 154 of the Act, observing that the net taxable income of the assessee is Rs. 5,50,63,636. The assessee preferred an appeal before the Commissioner of Income-tax (Appeals) ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ot have resorted to section 154 of the Act in the light of the judgment of the apex court in T. S. Balaram, ITO v. Volkart Brothers [1971] 82 ITR 50 (SC). According to learned counsel, the apex court had settled this issue in CIT v. Kotagiri Industrial Co-operative Tea Factory Ltd. [1997] 224 ITR 604 (SC) by reversing the decision of the Madras High Court and the said decision was rendered on March 5, 1997 whereas resort to section 154 was made in 1994 which could not be legally done. 8. Controverting the aforesaid submissions, learned counsel for the Revenue argued that the apex court in Kotagiri Industrial Co-operative Tea Factory Ltd.'s case [1997] 224 ITR 604 (SC) had held that unabsorbed losses of the earlier years had to be reduce ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ection 80-I after reducing the gross total income by unabsorbed losses/allowances of the earlier years. 10. In order to adjudicate the controversy raised herein, it will have to discern, whether the matter stood settled by the apex court decision in Distributors (Baroda) P. Ltd.'s case [1985] 155 ITR 120 (SC) or in Kotagiri Industrial Co-operative Tea Factory Ltd.'s case [1997] 224 ITR 604 (SC) as the former decision was rendered on July 1, 1985 whereas the latter pronouncement was on March 5, 1997. The issue before the Constitution Bench of the apex court in Distributors (Baroda) P. Ltd.'s case [1985] 155 ITR 120 (SC) was relating to deduction under section 80M of the Act. The question was, whether the assessee was entitled to claim th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t in Kotagiri Industrial Co-operative Tea Factory Ltd.'s case [1997] 224 ITR 604 (SC) had held that deduction under section 80P is from gross total income determined in accordance with the provisions of the Act and unabsorbed losses of the earlier years are to be set off before allowing the deduction under section 80P of the Act. Accordingly, the legal position on the basis of which rectification under section 154 of the Act had been initiated stood crystallized in 1985. 12. In view of the above, it cannot be said that the issue was debatable when Assessing Officer assumed jurisdiction to rectify order and rectification done was in order. Accordingly, no illegality is noticed in the order of the Tribunal and finding no merit in the appe ..... X X X X Extracts X X X X X X X X Extracts X X X X
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