TMI Blog2018 (11) TMI 1933X X X X Extracts X X X X X X X X Extracts X X X X ..... by way of a long drawn out process of reasoning on which there are two opinions as in the case on hand, where both the AOs involved hold different views. As considering the principles laid down in the case of T. S. Balaram, ITO Vs. Volkart Brothers [ 1971 (8) TMI 3 - SUPREME COURT] we are of the considered opinion that the rectification carried out by the AO in the case on hand does not fall within the scope on ambit of mistake apparent from the record. We, therefore, hold that the exercise undertaken by the AO is not in accordance with law, since the issue in question being a debatable one, with conflicting opinions of two AO s, the second AO could not to have resorted to proceedings u/s 154 of the Act and consequently set aside the impugned orders of the authorities below. The original order of assessment passed u/s 143(3) of the Act vide order dated 26.03.2014 for Assessment Year 2012-13 determining the assessee s income is accordingly restored. - ITA No.2637/Bang/2017 - - - Dated:- 14-11-2018 - SHRI JASON P BOAZ, ACCOUNTANT MEMBER AND SHRI LALIET KUMAR, JUDICIAL MEMBER For the Assessee : Shri. Ravishankar, Advocate For the Revenue : Shri. Siddappaji R. N ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sed the following grounds: 1. The orders of the CIT (A) in so far as they are against the appellant are opposed to law, equity and weight of evidence, probabilities, facts and circumstances of the appellant's case. 2. The appellant denies to be assessed to total income at Rs.23,93,260/- as against returned income of Rs.10,53,220/- on the facts and circumstances of the case. 3. The learned CIT(A) was not justified in appreciating that the provisions of section 154 cannot be invoked to make disallowances and additions which are debatable in nature, when the mandate of section 154 was restricted to errors apparent from record on the facts and circumstances of the case. 4. The learned CIT(A) was not justified in appreciating that the changes made by the AO under section 154 of the Act, does not fall within the meaning of mistake apparent from record, on the facts and circumstances of the case. 5. The learned CIT(A) was not justified in appreciating that the additions to income as arrived in the assessment order, were debatable issues and they could not be made under the provisions of section 154 of the Act, on the facts and circumstances of the case. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e learned AR submitted that the AO has carried out the exercise of rectification on the premise that the entire amount of Rs.16,61,954/- admitted in the course of survey ought to have been offered to tax without making all sorts of claims of expenditure thereon; whereas the only expenditure that increased was restricted to the partners salary. 5.1.2 According to the learned AR, in the order of assessment for Assessment Year 2012-13 passed u/s 143(3) of the Act vide order dated 26.03.2014, at para 4 thereof, the AO has rendered a finding that the assessee has offered additional income of Rs.16,61,954/- as per voluntary declaration made in the course of survey proceedings on 26.03.2012 and also observed that while filing the return of income for the assessment year in question assessee has shown Rs.16,61,954/- in its return. In this regard, the learned AR referred to the assessee s profit and loss account (copy placed at Page 6 of Paper Book) and work sheet (copy placed at Page 13 of Paper Book) to demonstrate that additional incomes declared amounting to Rs.16,61,954/- were considered in arriving at the profits of the assessee firm and were thus in accordance with the sworn stat ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... in carrying out the rectification vide order dated 17.03.2016. In the alternate, the learned DR further contended that the claim of expenditure made by the assessee was not permissible in view of Section 115BBE of the Act, which bars any claim of expenditure in case of additions u/s 68, 69, 69A, 69B and 69C of the Act. 5.3.1 In rejoinder, the learned AR submitted that the alternate claim of Revenue is untenable as section 115BBE of the Act was inserted by Finance Act, 2012 w.e.f. 01.04.2013 and hence operative only from Assessment Year 2013-14 onwards and not for Assessment Year 2012-13 i.e., the year under consideration. 5.4.1 We have considered the rival contentions and perused and carefully considered the material on record; including the judicial pronouncements cited. The primary issue for consideration is whether rectification is permissible u/s 154 of the Act in the facts and circumstances of the case on hand. The undisputed facts on record are that a survey u/s 133A of the Act was carried out at the business premises on 26.03.2012. In the course of survey proceedings, the assessee vide sworn statement admitted to additional income of Rs.16,61,954/- . The case was taken ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... be an obvious and patent mistake and not ,something which can be established by a long drawn process of reasoning on points on which there may conceivably be two opinions. As seen earlier, the High Court of Bombay opined that the original assessments were in accordance with law though in our opinion the High Court was not justified in going into that question. In Satyanarayan Laxminarayan Hegde and ors. v. Millikarjun Bhavanappa Tirumale [1960] 1 SCR 890, this Court while spelling out the scope of the power of a High Court under Article 226 of the Constitution ruled that an error which has to be established by a long drawn process of reasoning on points where there may conceivably be two opinions cannot be said to be an error apparent on the face of the record. A decision on a debatable point of law is not a mistake apparent from the record see Sidhramappa Andannappa Manvi v. Commissioner of Income-tax [1952] 21 ITR 333 (Bom.). The power of the officers mentioned in Section 154 of the Income Tax Act, 1961 to correct any mistake apparent from the record is undoubtedly not more than that of the High Court to entertain a writ petition on the basis of an error apparent on the face o ..... X X X X Extracts X X X X X X X X Extracts X X X X
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