TMI Blog2019 (6) TMI 586X X X X Extracts X X X X X X X X Extracts X X X X ..... pinion, CIT(A) has clearly erred in dismissing the assessee s appeal by holding that it is upon a debatable issue. Accordingly, since, the AO was not fortified to make an addition, qua section 14A as the matter stood already concluded by IT Settlement Commission order, this assessment order deserved to be cancelled/quashed. Accordingly, we set-aside the order of CIT(A) decide the issue in favour of the assessee. - ITA No.2125/Mum/2018 - - - Dated:- 9-5-2019 - Shri Shamim Yahya, Accountant Member And Shri Amarjit Singh, Judicial Member For the Assessee : Shri Shekhar Gupta For the Revenue : Shri S. K. Mishra ORDER PER SHAMIM YAHYA (ACCOUNTANT MEMBER) This appeal by assessee is directed against order of the Ld. CIT(A)-47, Mumbai, dated 08/02/2018 and pertains to Assessment Year 2005-06. The ground of appeal raised by the assessee is as under:- 2. The grounds of appeal read as under:- 1. The Ld. CIT(Appeals) has erred in law and on the facts of the case in sustaining the order of the assessing officer rejecting the application made by the assessee u/s. 154 o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 451)(4) dated 19-02-2008 was passed 'by the Hon'ble Income Tax Settlement Commission, Additional Bench, Mumbai for the assessment year 1999-2000 to 2005-2006, (Page No. 16 to 29) the said order was conclusive and final u/s.245-I and any proceedings in respect of the impugned years was statutorily prohibited to be reopened under the Income Tax Act or under any other law. The assessing officer has rejected the application against which the assessee has filed an appeal. We have to submit that the order passed by the assessing officer is bad in law and requires to be reversed. Section 245-1 reads as under: Every order of settlement passed under sub-section (4) of section 245D shall be conclusive as to the matters stated therein and no matter covered by such order shall, save as otherwise provided in this Chapter, be reopened in any proceeding under this Act or under, Act or under any other law for the time being in force. Thus, as per the plain reading of the above section any matter before the Settlement Commission cannot be reopened under any proceedings under this Act. The issue regarding disallowance u/s. 14A was before the Set ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... taken inadvertently; unintentional mistake; something incorrectly done through ignorance or inadvertence; mistake occurred from an accidental slip, deviation from standard or course of right or accuracy, unintentionally; to be wrong about; to think or understand wrongly; an omission made not be design, but by mistake. (See Cauvery Traders vs. Hornor Resources (International) Co. Ltd., (2011) 10SCC 420.) An apparent error of fact or law can be rectified by an officer. If the mistake of law has to be established by construing the words of a section to find its proper meaning, then such an error cannot normally be a rectifiable error under Section 36. If two views are possible, then obviously the error will not be an error apparent from the record. However, if the Supreme Court has construed the meaning of a section, then any decision to the contrary given by any other authority must be held to be erroneous and such error must be treated as an error apparent on the record. (See Poothundu Plantations (P) Ltd. Vs. Agricultural Income Tax Officer, (1996) 9SCC 499) Error means that must be such as would be apparent on mere looking of the record without requiring any long-dr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... which is floating on the surface of the record and not the mistake which can be discovered or discerned or established by way of discussions, debate and investigation into the issue. 6. Against the above order, assessee is in appeal before us. 7. We have carefully considered submission perused the records. Upon careful consideration, we note that the assessment in this case was reopened under 153A of the Act. It is also undisputed fact that earlier the settlement commission has passed an order for Assessment Year 2005- 06. In the said order, it was held that there would be no disallowance u/s 14A of the Act. The said order was conclusive final. Section 245-I, which clearly states as under:- Every order of settlement passed under sub-section (4) of section 245D shall be conclusive as to the matters stated therein and no matter covered by such order shall, save as otherwise provided in this Chapter, be reopened in any proceeding under this Act or under any other law for the time being in force. 8. Section 153A which has a non-obstante clause doesn t mention section 245-I. The section states as under:- ..... X X X X Extracts X X X X X X X X Extracts X X X X
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