TMI Blog2014 (1) TMI 319X X X X Extracts X X X X X X X X Extracts X X X X ..... e an error apparent on the face of the record - A decision on a debatable point of law is not a mistake apparent from the record - The allowance of deduction is not a glaring, obvious, patent and apparent from record - Decided in favour of assessee. - ITA Nos. 22 & 23/Jodh/2012 - - - Dated:- 12-10-2012 - Shri Hari Om Maratha And Shri N. K. Saini,JJ. For the Appellant : Shri Suresh Ojha For the Respondent : Shri G. R. Kokani ORDER Per Hari Om Maratha, JM We proceed to decide above captioned appeals by a common order because it would be convenient to do so, as identical issue (s) arising out identical facts are involved, therein ITA No.22/Jodh/2012 ( A.Y. 205-06 2.1 This appeal is directed against the order of th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ising the following grounds:- 1. That the order passed by the ld. CIT(A)-III, Jaipur is illegal and against the law. 2. That the ld. CIT(A) should have rectified the mistake as pointed out in the appeal. 3. That the ld. CIT(A) should have appreciated that the provision of the statute is binding on the Revenue Officer which was neither declared unconstitutional nor stayed by any of the competent court. 4. That the order passed by the ld. CIT(A) is against the judicial decorum an discipline 5. That the cost may kindly be awarded to the appellant. 2.2 We have heard rival submissions. We have also perused the sections of the Act referred to and the decisions relied on, by the parties. After considering them in entirety vis- -vis the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... gs.--(1) Where the gross total income of an assessee includes any profits and gains derived from any business referred to in sub-sections (3) to (11), (11A) and (11B) (such business being hereinafter referred to as the eligible business), there shall, in accordance with and subject to the provisions of this section, be allowed, in computing the total income of the assessee, a deduction from such profits and gains of an amount equal to such percentage and for such number of assessment years as specified in this section.;; 2.7 It is an undeniable and undisputed fact that Assessing Officer has passed the impugned order based on the verdict given in Liberty India (supra). The perusal of the judgement reveals that their Lordships have not co ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t, which as seen above has to be computed without taking into account the provisions of Chapter VI-A, but after taking into account other provisions of Act-whether under Chapter IV or Chapter VI. However, the court was not dealing with the interaction of the various sections contained in Chapter VI-A on the issue of deduction of any amount which is to be allowed under Chapter VI-A. Thus, the decision rendered in Shree Engneers case without Deference to the relevant provisions of the Act merely by Deference to Vishnu Oil Mills case (1996), 218 ITR 71 (Raj) was per incuriam and cannot be taken as a binding precedent and does not assist the Revenue in any manner. 2.9 Similar view has been taken by the Jodhpur bench in the case of M/s. Bothr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... spell out the distinction between the expressions " error apparent on the face of the record " and " mistake apparent from the record. " But suffice it to say that the Income-tax Officer was wholly wrong in holding that there was a mistake apparent from the record of the assessments of the first respondent. We have found that the allowance of deduction is not a glaring, obvious, patent and apparent from record. Hence, it cannot be rectified, in view of our above discussion.. Accordingly, we accept the appeal of the assessee and set aside the finding of the ld. CIT(A) by reversing the same and allow this appeal. 3.0 In the result, the appeal of the assessee stands allowed. ITA No.23/Jodh/2012 (A.Y. 2006-07) 4.1 This appeal is directe ..... X X X X Extracts X X X X X X X X Extracts X X X X
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