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TMI Blog2023 (6) TMI 970X X X X Extracts X X X X X X X X Extracts X X X X ..... the decision of the Tribunal, to the following effect: "2. Coming to the assessee's first and foremost appeal ITA No.816/Hyd/2015, learned counsel stated at the outset that he no more wishes to press for the same keep in mind the fact that necessary relief already stands granted to him in Section 154 rectification proceedings. Ordered accordingly. This first and foremost appeal ITA No.816/Hyd/2015 is dismissed as not pressed therefore in foregoing terms." 3. Thereafter, the learned DR submitted that once the order of the AO had attained finality as the assessee has not pressed the appeal for the assessment year 2010-11, then there was no reason for the Ld. CIT(A) to grant relief to the assessee through the colourable means door by granting relief under section 154 of the Income Tax Act, 1961 (for short "the Act"). He relied upon the decision of the Tribunal in the case of Shri Krishna Kumar D. Shah in ITA No. 1605 to 1608/Hyd/2014. 4. Per contra, learned AR submitted that the Tribunal in the case of DCIT vs. M/s. Leo Meridian Infrastructure Projects & Hotels Ltd., in ITA No. 1243/Hyd/2014, dt. 16/01/2023 had dismissed the appeal of Revenue on the ground that the company has go ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ssue of agricultural income. But in the 154 application filed before the Assessing Officer, the appellant has raised the issue of not to treat an amount of Rs. 27,35,28,865/- as Income under Other sources after considering the revised return. This issue was explained by the appellant during the course of assessment proceedings also before the Assessing Officer. But this issue was not decided in the original appeal as disposed by the CIT(A) vide order dated 13-03-2015, since the appellant not disputed and not filed ground. Therefore, this issue to be decided by Assessing Officer while disposing of 154 application. But the Assessing Officer failed to do so, therefore, the same is adjudicated now. 8.2 As per the remand report also, the AO mentioned that the revised return was filed but it was. not filed in Range-16, but it was filed in jurisdiction of ITO, Ward-6(1), Hyderabad. The original return was filed on 01-02-2011 and the revised return was filed on 20-03-2012 which was filed well in time as submitted by the appellant and the assessment u/s 143(3) was completed on 28-03-20 13. Therefore, as submitted by the appellant, the revised return was filed well in time. Therefore" the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... observation of the Tribunal reads as under: "18. From the bare perusal of section 154 of the order, it is clear that the power of rectification is given to the Assessing Officer to rectify any mistake which is apparent from the record. The immediate questions arise as to whether there was any apparent mistake in the order passed by the Assessing Officer in the year 2009 . The apparent mistake is one which can be found out without any efforts and reasonings or for which no detailed reason or enquiry is required. In this regard, the law has been fairly settled by the Hon'ble Supreme Court in the case JRD Stock Brothers (P) Ltd. Vs. CIT (supra), wherein the Hon'ble Supreme Court has dismissed the SLP filed by the assessee and upheld the decision of Hon'ble Delhi High Court. Similarly, in the case of TS Balram Vs. Volkart Brothers (1971) 82 ITR 50 (SC), the Hon'ble Supreme Court had held as under : "We have now to see whether the Income-tax Officer was justified in opining that in the original orders of assessment, there was any apparent mistake. As seen earlier, in the original assessments of the firm for the relevant assessment years, the Income-tax Officer adopted t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... thinking that on that question there can be no two opinions. It was not open to the Income-tax Officer to go into the true scope of the relevant provisions of the Act in a proceeding under section 154 of the Income-tax Act, 1961. A mistake apparent on the record must 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. ( emphasis supplied by us) 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 v. MallikarjunBhavanappa Tirumale [I960] 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 AndannappaManvi v. Commissioner of Income-tax ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ther relevant provision and of depreciation under section 37 of the Act, in the ordinary course of assessment, there is no reason why the same facilities be not extended to him, merely because of the profit is determined on the basis of estimation as was done in the instant case. We are of the view that depreciation and interest, which are otherwise deductible in the ordinary course of assessment, remain the same legal character, even where the profit of assessee is determined on percentage basis." 7. The legal position enunciated in Y. Ramachandra Reddy (supra) is that an assessee is not automatically disentitled to depreciation where the profit is determined on percentage basis. Hence, the issue of deduction on the score of depreciation from gross income which is computed on the basis of estimation is a debatable one and cannot be a palpable error on the face of the record. 8. We also find much substance in the argument on behalf of the assessee that in Indwell Constructions (supra), the Bench was not dealing with the issue of depreciation. In this regard it may be profitable to refer to the observations of this Court in Y. Ramachandra Reddy (supra) where the Bench distinguis ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 21. In the present case, after the Tribunal had dismissed the appeal of the assessee on merit, the Assessing Officer has rightly dismissed the rectification application filed by the assessee as the Assessing Officer was duty bound to implement the order passed by the Tribunal. The Hon'ble Supreme Court and High Courts had time and again reiterated the concept of merger of order of lower authority with the order of superior authority i.e., when the order of lower authority is approved by the superior authority/Tribunal then the order of the lower authority merged with the order of the superior authority. In other words after approval of the order without modification by the superior authority, the order of the lower authority ceases to exist. 22. The order of the Tribunal/superior authority passed by it can only be modified, set aside and annulled by process known to law. Admittedly, the Tribunal has neither recalled its order nor an appeal has been preferred against the order passed by the Tribunal before the hon'ble High Court. Therefore, the order passed by the Tribunal has attained finality and is required to be executed / enforced by the Assessing Officer. We cannot subscribe ..... X X X X Extracts X X X X X X X X Extracts X X X X
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