TMI Blog2018 (4) TMI 1947X X X X Extracts X X X X X X X X Extracts X X X X ..... rebate under section 88E is wrongly allowed in respect of 4 items of income as have been stated above. In our opinion, the issue sought to be rectified under section 154 was debatable and not apparently wrong. We are of the view that the order passed by Ld. CIT(A) upholding the order passed by AO under section 154 of the Act is wrong and can not be sustained. - ITA No. 581/M/2017 - - - Dated:- 10-4-2018 - SHRI C.N. PRASAD, JUDICIAL MEMBER AND SHRI RAJESH KUMAR, ACCOUNTANT MEMBER For the Assessee : Shri Niraj Sheth, A.R. For the Revenue : Shri M.V. Rajguru, D.R. ORDER Per Rajesh Kumar, Accountant Member: The present appeal has been preferred by the assessee against the order dated 08.11.2016 of the Commission ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... order u/s 154. 3. The appellant prays that disallowance of rebate u/s 88E on short term capital gains be deleted. Without prejudice to the above III. Third Ground of Appeal 1. The CIT(A) has erred in confirming the disallowance of rebate u/s 88E on the following incomes: Assessment Year : 2006-07 Previous Year ended: 31/03/2005 Status: Company PAN : AABCM 8845M Particulars Amount (In Rs.) Brokerage Income 5,80,242 Interest 2,87,319 Other Income 29,019 2. He failed to appreciate that disallowance of rebate on the above income was unjustified 3. Appel ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ge and other incomes aggregating to Rs.15,75,740/-. Thereafter, the assessee preferred an appeal before the Ld. CIT(A). 5. The Ld. CIT(A) dismissed the appeal of the assessee by observing and holding as under: I have considered the stand of the AO as well as the written submissions of the appellant. The provision of section 88E states that where the total of income of an assessee in a previous year includes any income, chargeable under the head, Profits Gains of Business or Profession , arising from taxable security transactions, he shall be entitled to deductions prescribed under conditions laid u/s.88E(2) of IT Act, 1961. It is observed that the appellant had not disclosed the income in respect of transactions on which STT is pa ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... income were business income and therefore, the assessee submitted that the issue sought to be rectified by the assessee in the order under section 154 of the Act qua disallowing the rebate in respect of Rs.15,75,740/- which comprised of brokerage and other income of Rs.5,80,242/-, interest of Rs.2,87,319/-, other income of Rs.29,019/- and short term capital gain on sale of Rs.6,79,160/- is a debatable issue and thus could not have been subject matter of rectification under section 154 of the Act as there is no mistake apparent on the face of the order. Therefore, the order passed by the Ld. CIT(A) confirming the order of AO under section 154 is wrong and against the provision of law and should be reversed. 7. Whereas the Ld. D.R., on the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... TT attributable to the earning of the above incomes of Rs.15,75,740/- is required to be withdrawn under section 154 of the Act. The said order was upheld by the Ld. CIT(A) by observing that assessee has not disclosed income in respect of transactions on which STT under the head income from business and profession and thus has not fulfilled the condition prescribed under section 88E(i) of the Act and thus claimed a wrong deduction and ultimately dismissed the appeal of the assessee. Now without going into the merits of the case, we would like to deal with the matter on technical and legal issue. We find merit in the contention of the Ld. A.R. that the provision of section 154 of the Act should be resorted in order to rectify an apparent mist ..... X X X X Extracts X X X X X X X X Extracts X X X X
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