9911796707
TMI Blog2013 (9) TMI 612X X X X Extracts X X X X X X X X Extracts X X X X ..... ) is being challenged on facts & law as it has been passed overlooking & ignoring the directions of CIT(A) and Tribunal which by the Higher Authorities band binding in nature and not discretionary. 2. Because the action is under challenge for not disposing off the directions of Tribunal order dt. 17.2.2006 to make appropriate modification of assessed income relating to surrender of withdrawal for an amount of Rs. 94,95,000/- from IDBI. 3. Because the action is under challenge on charging interest u/s 234B, 234C of the Income Tax Act." 2.1. Ld. Counsel for the assessee at the out set contends that assessee's appeals are only in support of CIT(A)'s order, do not raise any specific grounds and they are not pressed. In view thereof the asses ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... lease transactions came into trouble as RSPL stopped paying the instalments stating that there was slump in the market and showed its inability to pay the balance amount. It was requested that the lease agreement be cancelled as the lessee had not obtained the machinery, started the manufacturing activities and the entire lease amount be transferred to its loan account and the lease money received by the company during the Assessment Years 1995-96 and 1996-97 be credited to the said loan account alongwith the security amount. 3.2. In the case of other lessee MTPL, the assessee did not receive any instalment except an initial amount of Rs. 21,000/-, this arrangement was also cancelled. 3.3. The assessee also verified the fact that both the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n u/s 32AB and taxing the lease rental income although it neither accrued nor it was earned. 3.5. Aggrieved, assessee preferred appeals and before ITAT agitating the issue of double taxation i.e. by way of withdrawal of deduction under section 32AB as per the revised return for A.Y. 1995-96 and by taxing the lease rentals for the various assessment years starting from 1995- 96, which were neither earned nor accrued. The ITAT in the order dated 17.02.2006 in ITA No. 2988 (Del)j99 for A.Y. 1995-96 and ITA No. 1645(Del)/2000 for A.Y.1996- 97, directed the assessing officer to make appropriate modification of assessed income by following observations: "During the course of proceedings before the authority below the assessee pleaded that entir ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e AO in the consolidated order dated 05.03.2008 for the A.Ys. 1995-96 to 1998-99, by following observations: "It is evident from the above direction of the ITAT that the assessee company should have been allowed reasonable opportunity to consider the issue of deduction u/s 32AB. . On going through the facts of the case and also details thereof it appears that there is no mistake apparent from record while giving effect to the order of the Hon'ble ITAT. The issue Involved does not come within the purview of section 154 as there are difference of opinion and the assessee company already before Hon'ble Delhi High Court on these issues. However, assessment for the AY. 95-96 was also completed uls 143(3)/254 on 19.11.2007 and the assessee compa ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 5,64,994 1,02,582 3,34,768 (-) 24,44,594 Add: Interest portion to be added as per directions of ITAT 2,66,062 3,44,594 3,44,594 3,44,594 Taxable Income (-) 2,98,882 4,47,176 6,79,362 (-) 21,00,366 *Wrongly added Rs. 32,75,184/- instead of Rs. 11,10,246/- which included interest portion of Rs. 3,44,594/-. Ground nos. 2 & 3 of appeal for A.Y. 1995-96 and ground no. 2 of appeals for A.Y. 1996-97, 1997-98 and 1998-99 are related to the issue of double taxation which was allowed as indicated above." Aggrieved, Revenue is before us. 4. Ld. DR contends that the mistake as proposed by the assessee is not a mistake apparent from the record. Section 154 does not cover a mistake which is to be discovered by a complicated process of in ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ther side of the coin a natural consequence is that transaction having not materialized the lease rental is neither accrued nor earned. This is further evident from the fact that assessee has filed a suit in Hon'ble Delhi High Court in this behalf. (iv) The income which has neither accrued nor earned cannot be brought to tax on ipse dixit more so when the ITAT has issued appropriate directions for consideration. (v) The mistake sought to be rectified is apparent from the record, glaring one and did not require any complicated process of investigation, arguments or proof. (vi) CIT(A) has rightly held the mistake to be apparent from the record and reduced it from assessed income and the lease rental having been taxed under "Income from oth ..... X X X X Extracts X X X X X X X X Extracts X X X X
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