TMI Blog2014 (6) TMI 664X X X X Extracts X X X X X X X X Extracts X X X X ..... he assessee’s submission. Mistake apparent on record - Whether there is any mistake apparent from record within the ambit of section 254(2) which has crept in the order – Held that:- The issue of allowance of deduction u/s 36(1)(viiia) with regard to the provisions on standard assets was subject matter of revision by the Commissioner u/s 263 not only in the year but also in the earlier year i.e., 2005-06 - the major difference in this year is that, the Commissioner has passed the order after discussing it on merits and has directed the AO to withdraw the deduction u/s 36(1)(viia) in the earlier year - on the material difference itself, the earlier order of the learned Commissioner as well as the Tribunal cannot be held to be mutatis mut ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Officer to pass the fresh assessment after giving sufficient opportunity to the assessee. Whereas in this year, the learned Commissioner has decided this issue on merits, therefore, the same cannot be said to be covered by the findings given therein and will not apply mutatis mutandis in this year also. 3. Before us, the learned Counsel, Mr. Girish Dave, on behalf of the assessee, submitted that in the earlier order passed by the learned Commissioner under section 263, for the assessment year 2005-06, the learned Commissioner had set aside the assessment under section 263 on all the point raised by him for re-doing the assessment as per the law without going into the merits of the issue. This order of the learned Commissioner was confirm ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... that it has been conceded by the learned Counsel that the facts and the issue involved in this year are the same, then, it cannot be held that there is a mistake apparent from record. Thus, he strongly objected to recalling or modifying the Tribunal order. 5. We have heard the rival contentions and perused the material available on record. The assessee had preferred appeal before the Tribunal, challenging the order passed by the learned Commissioner under section 263, wherein the learned Commissioner has directed the Assessing Officer to modify the assessment order on the grounds, which were as under:- i. Deduction of Rs. 230.45 crores granted under section 36(1)(ii) may be withdrawn as the assessee is not entitled for deduction nas ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he deduction of Rs. 1,244.90 crores which was taxed during A.Y. 2001-02 to 2004-05 over looking the fact that he assessee bank has not accepted the addition made in the above assessment years. 2) In Para-2 of Notes to the statement of income, the bank has mentioned that the bank as per Reserve Bank of India guidelines for non-recognition of interest on advances classified as non-performing assets (NPA) did not recognize such interest on bad and doubtful debts . The Assessing Officer failed to conduct any enquiry as to whether the bank has fulfilled the conditions laid down under Rule 6EA of the Income Tax Rules for not recognizing the interest on NPA. 3) While working out deduction u/s 36(1)(viia) including the prudential provision o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... is covered by the order of the Tribunal for the assessment year 2005-06. Thus, at this stage, it is very difficult to accept the contention of the learned Counsel that at the time of hearing, he has not admitted this fact and on the contrary, has argued the issue on merits highlighting the distinguishing features from the earlier year with the order of the impugned assessment year. The learned Counsel s arguments on other issues have been very well noted and decision has been given on merits. There is nothing in the record that on this issue, the Tribunal has overlooked the assessee s submission. 10. It is expected from the parties that at the time of hearing, correct facts and contentions should be raised based on the material placed o ..... X X X X Extracts X X X X X X X X Extracts X X X X
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