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2015 (7) TMI 729 - ITAT AHMEDABAD

2015 (7) TMI 729 - ITAT AHMEDABAD - TMI - Rejection of application u/s.154 - whether the mistake on the part of the AO in the return so filed can be rectified by invoking the provisions of section 154 of the Act? - Held that:- As per Section 139(1) of the Act, return is required to be filed by every person, (a) being a company (or a firm) or; (b) being a person other than a company (or a firm), if his total income or the total income of any other person in respect of which he is assessable under .....

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b-section (1) of section 142, discovers any omission or any wrong statement therein, he may furnish a revised return at any time before the expiry of one year from the end of the relevant assessment year or before the completion of the assessment, whichever is earlier.

From the provisions, it is evident that it is not the case that Revenue Authorities have to accept whatever stated in the return and compute the taxable income mechanically. As per provisions of section 143(1) of the A .....

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of the Act and grant refund amount of ₹ 1,88,580/-. See Pawan Kumar Aggarwal vs. CIT [2014 (5) TMI 449 - DELHI HIGH COURT] - Decided in favour of assessee. - I.T.A. No.2100/Ahd/2011 - Dated:- 17-7-2015 - Shri Anil Chaturvedi and Shri Kul Bharat, JJ. For the Petitioner : Ms.Urvashi Shodhan, AR For the Respondent : Shri Roop Chand, Sr.DR ORDER PER SHRI KUL BHARAT, JUDICIAL MEMBER : This appeal by the Assessee is directed against the order of the Ld.Commissioner of Income Tax(Appeals)-XIV, A .....

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he I.T.Act. (3) Your appellant craves leave to add, alter, amend, omit all or any of the grounds of appeal before the appeal is finally heard and decided. 2. Briefly stated facts are that the assessee had filed its return of income declaring total returned income of ₹ 71,91,960/- and the same was processed u/s.143(1) of the Income Tax Act, 1961 (hereinafter referred to as the Act ) on 01/09/2008. Subsequently, the assessee filed an application u/s.154 of the Act seeking for rectification o .....

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in appeal before us. 3. The only effective ground in this appeal is against upholding the action of the AO and that of rejecting the application u/s.154 of the Act. 4. The ld.counsel for the assessee submitted that the authorities below have failed to appreciate the fact that the appellant is a private company carrying business of manufacturing of tobacco. For the A.Y. 2007-08 return of income was filed declaring total income of ₹ 71,91,960/-. Subsequently, on verification of assessee s r .....

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e part of the assessee in the return of income, that mistake can be rectified by invoking the provisions of section 154 of the Act. The ld.counsel for the assessee placed reliance on the judgement of the Hon ble High Court of Delhi rendered in the case of Pawan Kumar Aggarwal vs. CIT in ITA No.199/2014 dated 06/05/2014 and the decision of the Coordinate Bench (ITAT Kolkata Bench B ) rendered in the case of DCIT vs. Justice Dilip Kumar Seth reported at (2006) 98 ITD 241 (Kol.) 4.1. On the contrar .....

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the ld.CIT(A) has affirmed the order of the AO by observing as under:- 3.3 Decision: I have carefully perused the assessment order and the written submission filed by the Id.AR of the appellant. The submission of the appellant that it had added the provision of deferred tax of ₹ 2,50,000/- to the net profit in deriving at the amount of profit after tax in the P & L Account as per the Companies Act instead of subtracting the same from P & L Account, is factually correct. The appell .....

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s no mistake on the record. The appellant himself has added the provision for taxation and to correct that mistake, he has to file a revised return along with supporting evidence. The appellant has also mentioned certain judicial decisions in support of his claim. I have carefully perused the decisions, but the facts of those decisions are distinguishable. In one case (225 .ITR 348), the issue involved was claim of investment allowance whereas in other case, it was regarding the claim of 80IA an .....

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the mistake committed at that level. The appeal is accordingly dismissed. 5.1. We have given our thoughtful consideration to the rival contentions raised at Bar by the respective representatives of the parties. The issue to be decided is that whether the mistake on the part of the AO in the return so filed can be rectified by invoking the provisions of section 154 of the Act. At this stage, it would be appropriate to examine the relevant provisions relating to filing of the return and process o .....

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he previous year, in the prescribed form and verified in the prescribed manner and setting forth such other particulars as may be prescribed. 5.3. As per Section 139(5) of Act, If any person, having furnished a return under sub-section (1), or in pursuance of a notice issued under sub-section (1) of section 142, discovers any omission or any wrong statement therein, he may furnish a revised return at any time before the expiry of one year from the end of the relevant assessment year or before th .....

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ncorrect claim is apparent from any information in the return. 5.4. As per section 143(1)(b), the tax and interest, if any, shall be computed on the basis of the total income computed under clause (a) and the income under clause (a) is required to be computed after making the adjustment, namely:- (i) any arithmetical error in the return; or (ii)an incorrect claim, if such incorrect claim is apparent from any information in the return. 5.5. From the provisions, it is evident that it is not the ca .....

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rily mean mistake apparent from the record. The Revenue has relied upon the judgement of the Hon ble High Court of Kerala rendered in the case of M.Far Hotels Ltd. vs. CIT (supra), the facts of the present case are different from the facts of the case before the Hon ble High Court of Kerala. The ld.counsel for the assessee has relied upon the judgement of Hon ble High Court of Delhi rendered in the case of Pawan Kumar Aggarwal vs. CIT(supra), wherein the Hon ble High Court has held as under:- 6 .....

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er referred to in sub-section (1), the authority passing such order may, notwithstanding anything contained in any law for the time being in force, amend the order under that sub-section in relation to any matter other than the matter which has been so considered and decided.] (2) Subject to the other provisions of this section, the authority concerned- (a) may make an amendment under sub-section (1) of its own motion, and (b) shall make such amendment for rectifying any such mistake which has b .....

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stage of the appeal and the further appeal to the ITAT. Even after such decision, it is open to the AO to amend the intimation under Section 143 (1) if the circumstances so warrant. We are wholly in agreement with the decision in Sam Global 's matter (supra) that the technicalities in the given circumstances of the case ought not to obscure the justice. The justice demands, in the peculiar facts of the case, that there is no impediment to relief. That appears to have been overlooked in entir .....

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ase of Dy.CIT vs. Justic Dilip Kumar Seth reported at (2006) 98 ITD 241 (Kol.), wherein the Hon ble Coordinate Bench following the judgement of the Hon ble Calcutta High Court in the case of CIT vs. Premier Polymers (P.) Ltd. reported at (1992) 107 CTR 310 and also the judgement of Hon ble Supreme Court in the case of CIT vs. D.P.Sandhu Bros., Chembur (P.Ltd. reported at (2005) 273 ITR 1::142 Taxman 713 (SC), has decided this issue by observing as under:- 19. In view of the above facts and circu .....

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