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2016 (7) TMI 673 - ANDHRA PRADESH HIGH COURT

2016 (7) TMI 673 - ANDHRA PRADESH HIGH COURT - TMI - Rectification of mistake - applicability of provisions of Section 115JB - Held that:- Applicability of Section 115JB of the Act was in issue before the Tribunal, and was decided by the Tribunal, the same could not be revived in subsequent proceedings; and the present application could not be entertained, and the order of the Tribunal dated 19.03.2010 could not recalled, as it would amount to review. The Tribunal held that the so-called mistake .....

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st the order passed by the Income Tax Appellate Tribunal, Hyderabad in M.A.No.126/Hyd/2014 in I.T.A.No.1364/H/2013 dated 10.12.2014. M.A.No.126/Hyd/2014 was filed by the assessee seeking rectification of the mistake which had allegedly crept in the order passed by the Tribunal in I.T.A.No.1364/H/2013 for the assessment year 2005-06. The Assessing Officer, while assessing the appellant under the Act, held that the provisions of Section 115JB of the Act were applicable. However, as the ultimate ta .....

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ccept the submission of the assessee regarding the applicability of the provisions of Section 115JB of the Act. The Commissioner of Income Tax (Appeals) confirmed the order of the Assessing Officer. Aggrieved thereby, the assessee preferred I.T.A.No.681/Hyd/08 before the Tribunal. One of the grounds raised by the assessee before the Tribunal was in respect of the applicability of the provisions of Section 115JB of the Act. The Tribunal, in its order in I.T.A.No.681/Hyd/08 dated 19.03.2010, recor .....

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ry of SBI neither is required to hold Annual General Meeting nor adopt its accounts which is mandatory as per the provision of Section 115JB of the Act, 1961. The Tribunal recorded that, at the time of hearing, learned counsel for the assessee did not press for these grounds and these grounds were, accordingly, rejected as not pressed. As is evident from the order of the Tribunal, ground No.6 related to the applicability of Section 115JB of the Act to the Bank and, as this ground was not pressed .....

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ed payment of the tax computed as per Section 115JB of the Act. The assessee again preferred an appeal, against the order of the Assessing Authority, to the Commissioner of Income Tax (Appeals) who, in her order dated 21.08.2013, observed that the grievance of the appellant, against the assessment order dated 22.03.2007, could no longer be agitated at this stage; whether or not Section 115JB of the Act can be applied to the appellant had already been adjudicated by the Commissioner of Income Tax .....

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, in I.T.A.No.1364/H/2013 dated 05.02.2014, the Tribunal held that the plea of the assessee was misconceived; the assessee had challenged this issue on an earlier occasion before the Tribunal, and had stated that they did not want to press this ground; after hearing both the parties, the Tribunal had dismissed the ground raised by the assessee as not pressed; this meant that the Tribunal had adjudicated the ground; thereafter the Assessing Officer had passed the impugned consequential order, wh .....

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; and, therefore, if the assessee wanted to agitate the issue, which had already been decided by the Tribunal, the Tribunal had no power, and the remedy lay elsewhere. Thereafter, the appellant herein filed M.A.No.126/Hyd/2014 seeking rectification of the order passed in I.T.A.No.1364/H/2013 dated 05.02.2014. In the order under appeal, the Tribunal held that the appellant could not revive the issue, relating to the applicability of Section 115JB of the Act to the assessee, which had attained fin .....

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, pointed out in the M.A, was not in the nature of a mistake envisaged under Section 254(2) of the Act. The M.A. was dismissed. Section 254(2) of the Act empowers the Income Tax Appellate Tribunal, at any time within four years from the date of the order, with a view to rectify any mistake apparent from the record, to amend any order passed by it under Section 254(1) of the Act, and to make such amendment if the mistake is brought to its notice by the assessee or the Assessing Officer. The juris .....

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dication of the question regarding applicability of Section 115JB of the Income Tax Act; they obtained approval of the Committee of Disputes only in the year 2011, after the Tribunal had passed the order in I.T.ANo.681 of 2008 dated 19.03.2010; the Supreme Court, i n Oil and Natural Gas Commission vs. Collector of Central Excise, had specifically held that no appeal could be preferred without the consent of the Committee of Disputes; it is in such circumstances that the appellant could not press .....

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Section 115JB of the Act, on the ground that they had not obtained approval of the Committee of Disputes, an application for rectification could only have been filed to rectify the mistake, if any, in the order in I.T.A.No.681 of 2008 dated 19.03.2010. The order of the Tribunal in I.T.A.No.681 of 2008 dated 19.03.2010 does not record that the appellant-assessee was not pressing for an adjudication on the applicability of Section 115JB of the Act on the ground that they had not obtained approval .....

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