TMI Blog2020 (12) TMI 658X X X X Extracts X X X X X X X X Extracts X X X X ..... sible. We may point here that the Act provides safeguards to the Revenue to plug the escapement of any income. The cannons in the form of revision under section 263 of the Act, reassessment under section 147 of the Act and rectification of mistake under section 154 of the Act have to be used appropriately. The remedies available to the Revenue under the Act are not mutually alternate. The right cannon has to be fired at right time depending on facts and circumstances of each case. The Assessing Officer in the present case has over stepped his jurisdiction in exercising his powers u/s. 154 to review his order. - C.O.128/MUM/2016 (Arising out of ITA No.726/Mum/2016) - - - Dated:- 9-12-2020 - Shri Vikas Awasthy, Judicial Member And Shri S. Rifaur Rahman, Accountant Member For the Assessee : Shri Nitesh Joshi For the Revenue : Shri Uodal Raj ORDER PER VIKAS AWASTHY, JM: The present Cross Objections are arising from the order of Commissioner of Income Tax (Appeals)-24, Mumbai ( in short the CIT(A) ) dated 30/11/2015 for the assessment year 2005-06. 2. Before proceeding further to decide the cross objections by the assessee, it is necessary to narrate ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ve been made by the AO under the rectification proceedings under section 154 of the Act The Tribunal vide order dated 03/11/2017 reversed the findings of CIT(A) on the issue of assessee s claim of carry forward of Long Term Capital Loss i.e. the claim disallowed by the Assessing Officer in proceedings under section 154 of the Act. In other words, the Tribunal upheld the findings of Assessing Officer on merits. As regards jurisdictional issue raised in the cross objections by the assessee including additional grounds on jurisdiction, the Tribunal held that the cross objections have become infructuous. 2.1 Subsequently, the assessee filed a Miscellaneous Application No.296/Mum/2018 assailing that the legal grounds raised by the assessee in the additional grounds remain to be adjudicated and prayed for recalling the order of Tribunal dated 03/11/2017. The Tribunal vide order dated 08/08/2019 accepted the Miscellaneous Application and partly recalled the order dated 03/11/2017 for the limited purpose to decide the additional grounds raised in the cross objections. The operative part of the order of Tribunal in M.A. No.296/Mum/2018 dated 08/08/2019 is reproduced herein below:- ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of Raptakos Brett Co. Ltd., vs.DCIT, reported as 69 SOT 383(Mum- Trib) allowed assessee s claim of carry forward of long term capital loss on sale of shares. The Revenue challenged the finding of CIT(A) before the Tribunal. The assessee filed cross objections against the order of CIT(A) in not adjudicating the legality of Assessing Officer s action in invoking the provisions of section 154 of the Act. The Tribunal decided the issue on merits against the assessee by following the decision of Hon'ble Gujarat High Court in the case Kishorebhai Bhikabhai Virani vs. ACIT, 367 ITR 261(Guj). However, the assessee s additional ground challenging legality of invoking the provisions of section 154 of the Act to disallow carry forward of long term capital loss was not adjudicated by the Tribunal. 4. The ld.Authorized Representative of the assessee submitted that before deciding any issue on merits, first jurisdictional issue has to be adjudicated. The ld.Authorized Representative of the assessee asserted that the Assessing Officer has erred in invoking the provisions of section 154 of the Act to reject assessee s claim of carry forward of long term capital loss on sale of shares. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e further submitted that the Tribunal has upheld the findings of Assessing Officer in disallowing assessee s claim of carry forward of long term capital loss on sale of shares by following the order of Hon'ble Gujarat High Court in the case of Kishorebhai Bhikabhai Virani vs. ACIT (supra). 6. We have heard the submissions made by rival sides and have examined the orders of authorities below. The limited issue for adjudication before us is validity of proceedings under section 154 of the Act invoked by the Assessing Officer to rectify alleged mistake in the assessment order. 7. A bare perusal of the provisions of section 154 of the Act would reveal that the Assessing Officer can rectify mistake apparent from the record either suo-motu or on an application by the assessee or the concerned authority. The Assessing Officer does not have unfettered powers to invoke the provisions of section 154 of the Act to review his order. The Assessing Officer can neither adjudicate a debatable issue under the provisions of section 154. 8. In the instant case, the assessee has declared long term capital loss on sale of shares and has carry forward unabsorbed long term capital loss to th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... deducted from the profits while working out deduction under section 80HHC. All that the Tribunal has held is that this issue was a contentious issue and as such fell beyond the scope of a mistake apparent from the record which could be rectified under section 154. No fault can be found with this finding of the Tribunal also. The Tribunal while deciding this issue has relied on some of its earlier decisions as also on a decision of the Orissa High Court taking a view in favour of the assessee. In such circumstances, it could not possibly be contended that the said view was not a possible view. Once it is found that there could be more than one view on a particular issue, the matter cannot be rectified under section 154 as held by the Apex Court in the case of Volkart Bros. (supra ) . The Hon'ble Calcutta High Court in the case of V.R. Sonti vs. CIT, 117 ITR 838 has held that where there is a divergence of judicial opinion on question of law or two conceivable views are possible/ on a issue, proceedings under section 154 of the Act cannot be taken at all. This view has been reiterated by the Hon ble High Court in the case of CIT vs. Orient Paper Industries Ltd. 208 ITR 15 ..... X X X X Extracts X X X X X X X X Extracts X X X X
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