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2017 (1) TMI 665 - ITAT MUMBAI

2017 (1) TMI 665 - ITAT MUMBAI - TMI - Rectification of mistake - Validity of proceedings/order under section 154 r.w.s. 143(3) - working of the rebate under section 88E - Held that:- The issue of working of the rebate under section 88E of the Act is highly debatable one and are beyond the purview of the rectificatory provisions under section 154 of the Act invoked by the AO. In this view of the matter, we quash the rectification orders of the authorities below as invalid and bad in law, and con .....

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T(A)- 9, Mumbai dated 08.01.2015 for A.Y. 2008-09. 2. The facts of the case, briefly, are as under: - 2.1 The assessment in the case on hand for A.Y. 2008-09 was completed under section 143(3) of the Income Tax Act, 1961 (in short 'the Act') vide order dated 30.11.2010 determining the assessee s income at ₹ 5,22,80,530/-, inter alia, allowing rebate of ₹ 1,22,15,102/- under section 88E of the Act. The Assessing Officer (AO) initiated rectification proceedings and proceeded to .....

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directing the AO to allow rebate thereunder to the extent of ₹ 99,94,555/- as against ₹ 86,50,500/- allowed by the AO. 3. Aggrieved by the order of the CIT(A) -9, Mumbai dated 08.01.2015 for A.Y. 2008-09, the assessee has preferred this appeal raising the following grounds: - 1. The Learned CIT(A) has erred in law and in fact in partially confirming the impugned order u/s 154 r.w.s. 143(3), which is contrary to the provisions of the Act. 2. The Learned CIT(A) has erred in law and in .....

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ny of the foregoing grounds of appeal. 4. Ground at Sr. Nos 2 & 4 4.1 At the outset of the hearing, the learned A.R. of the assessee submitted that the grounds at Sr. Nos 2 and 4 (supra) are general grounds, not calling for any adjudication thereon. In this view of the matter, grounds 2 and 4 are rendered infructuous and accordingly dismissed. 5. Ground No. 1 - Validity of proceedings/order under section 154 r.w.s. 143(3) of the Act. 5.1.1 In this ground, the assessee challenges the validity .....

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ds and the same issues were raised contending that the AO had erred in law and on facts in revising the amount of rebate under section 88E of the Act under section 154 of the Act without appreciating that there was no mistake apparent from the record at grounds 1 and 3 thereof. It was submitted that a perusal of the impugned order would evidence that the learned CIT(A) has not adjudicated ground No. 1 of the original grounds stating, inter alia, that the same was not pressed by the learned A.R. .....

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3 put forth before the learned CIT(A) at paras 14 to 21 thereof have been strongly reiterated by the learned A.R. According to the learned A.R. the invocation of jurisdiction under section 154 of the Act was void and bad in law as the order of the assessment for A.Y. 2008-09 dated 30.10.2010 did not contain any mistake apparent from the record, which are glaring and patent, requiring no elaborate discussions with respect to evidence or arguments. It is contended that the rebate under section 88E .....

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be held as invalid and bad in law, since the issue involves debatable point of law and is consequently beyond the purview of the provisions of section 154 of the Act. In support of the proposition that the order passed by the AO under section 154 r.w.s. 143(3) of the Act dated 22.03.2013 for A.Y. 2008-09 is to be held invalid and bad in law, the assessee placed reliance, inter alia, on the following judicial pronouncements: - (i) Banwari Lal Tlusyan vs. Income Tax Officer (ITA No. 115/Kol/2011 .....

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1.2010, the AO after specifically examining the assessee s claim for being allowed ₹ 1,30,02,755/- as rebate under section 88E of the Act, allowed the assessee rebate thereunder only to the extent of ₹ 1,22,15,102/- after scrutiny and verification of the relevant records and the express provisions of law at paras 4.1 and 4.2 of the said order. 5.3.2 On appeal, we find from a perusal of the impugned order that the learned CIT(A) did not address this issue raised in the original ground .....

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ct of rebate under section 88E of the Act, the ITAT, Kolkata A Bench in the case of ACIT vs. Shri Kedar Nath Agarwal in ITA No. 421/Kol/2011 dated 14.10.2011 and Banwari Lal Tulsyan vs. ITO in ITA No. 115/Kol/2011 dated 05.08.2011, holding that the issue of disallowing the claim of expenses while recomputing the rebate under section 88E of the Act being highly debatable and beyond the purview of the provisions of section 154 of the Act; they therefore quashed the rectification order. In the case .....

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