TMI Blog2023 (8) TMI 1112X X X X Extracts X X X X X X X X Extracts X X X X ..... Hindwire Industries ( 1995 (1) TMI 2 - SUPREME COURT] the assessee filed rectification application within the time, to which the AO ought to have considered. In view of this, we hold that the rectification application field by the assessee is well in time and it is a mistake apparent on record which should have been rectified by the Revenue Officer on the request made by the assessee .Appeal of the assessee is allowed and the AO is directed to compute the correct income as per law. - Shri Laxmi Prasad Sahu, Accountant Member For the Appellant : Shri Sripada M, C.A For the Respondent : Shri Ganesh R Gale, Standing Counsel for Dept. (DR) ORDER PER LAXMI PRASAD SAHU, ACCOUNTANT MEMBER: This appeal filed by the assessee is against the order dated 21.03.2023 vide DIN No.ITBA/NFAC/S/250/2022-23/ 1051048309(1) passed u/s 250 of the Income-tax Act, 1961 by the NAFC Delhi for the assessment year 2013-14 on the following grounds of appeal. 1. The Commissioner of Income Tax Appeals, National Faceless Assessment Centre, Delhi, although decided the appeal on merit, however erred in observing that the appeal filed by the Appellant is barred by limitation as f ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ces. The gross total income of the assessee was Rs. 36,51,368/- and claimed deduction under Chapter VI A of Rs. 1,10,000/-. Accordingly, the return of income declared of Rs. 35,44,370/- and filed return of income on 29/07/2013. The return of income of the assessee was processed u/s 143(1) of the Act and assessed income at Rs. 48,78,460/-. Against which, the assessee filed rectification application on 04/07/2024 u/s 154 of the Act, which was processed on 07/08/2014 denying the rectification sought by the assessee. The assessee filed again rectification on 11/11/2014, it was also processed by the CPC on 27/11/2014 denying the rectification sought by the assessee. Again, the assessee filed rectification on 28/02/2015, which was transferred to the jurisdictional AO on 09/03/2015. Accordingly, the assessee filed rectification application before the jurisdictional AO on 13/11/2016 stating the reasons along with the earlier applications. The assessee further filed rectification application on 31/10/2019 and also filed letter dated 30/09/2019 which was disposed of by the AO on 09/02/2020 by observing that the same income disclosed by the assessee twice cannot be considered u/s 154 of the A ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the rectification applications filed by the Appellant is given below: 3.1. During the year under consideration, the Appellant has earned profit from speculative business from trading in derivatives and other instruments. 3.2. Since the Appellant has not maintained the books of account, the Appellant has correctly shown the details of gross receipts from speculative business in `Schedule P L Profit Loss Account' under No Accounts case category. The relevant screenshot from the ITR is given below: 3.3. Furrher, while filing the details of income under the head Income from Business or Profession in its return of income in `Schedule BP - Computation of Income from business or profession', the said amount was disclosed under speculative business. The relevant screenshot from the ITR is given below: 3.4. The Appellant wishes to iterate that the same amount of Rs. 13,37,089/- is shown as gross receipts in Profit Et Loss account first and thereafter shown as taxable income in Schedule BP (Computation). We hasten to inform the Hon'ble Bench that, the Income tax return filing utility auto populates the total income and taxable income ba ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... is humbly submitted that the mistake of taxing the same income twice by the tax department be considered as mistake apparent on record and rectified under section 154 of the Act. 5.5. Without prejudice, even if it is doubly disclosed in the Income Tax return, considering the fact that the Appellant has paid due taxes and filed ITR by considering the income only once (rightly so), the learned AO is duty bound to make necessary rectification in the Intimation. It is submitted that the AO should not take advantage of ignorance of the Appellant to his right. 5.6. In support of the above, we wish to rely on Circular No 14 (XL 35) of 1955 dated 11th April 1955 issued by CBDT. The relevant extract from the Circular is given below: 3. Officers of the Department must not take advantage of ignorance of an assessee as to his rights. It is one of their duties to assist a taxpayer in every reasonable way, particularly in the matter of claiming and securing reliefs and in this regard the Officers should take the initiative in guiding a taxpayer where proceedings or other particulars before them indicate that some refund or relief is due to him. This attitude would, in the long run ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... not to have rejected the application u/s 154 of the Act on the ground that the assessee has not filed the revised return of income. The CIT(A) has placed reliance on the decision of the Hon'ble supreme Court in the case of Goetz (India) Ltd. (supra) for sustaining the order of the AO u/s 154 of the Act. The Hon'ble Supreme Court in it's decision rendered in the case of Goetze (India) Ltd vs CIT has clarified that the appellate authorities under the Act have the power to consider the claim even if the business of the revised return of income. In my view, therefore, the claim of the assessee that Long Term Capital Gain is exempt u/s 10(38) of the Act has to be examined by the A0. It is seen from the order of AO u/s 154 of the Act that the AO wanted details of acquisition and proof of payment of STT. I therefore set aside the order of CIT(A) and remand the question of exemption of Long Term Capital Gain u/s 10(38) of the Act to the AO for fresh consideration. The assessee is directed to file necessary evidences before the AO to substantiate his claim. A copy of the above referred judgement is enclosed as Appendix 1 to this Submission. 6. Brief of Assessing Officer&# ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... /U4/1422241182 dated 27th November 2014. 7.3. Furthermore, the Appellant wishes to highlight that the Appellant has preferred Appeal before National Faceless Appeal Centre after getting the first detailed Order dated 1 9th February 2020 from the Assessing Officer. 7.4. In this regard, the Appellant wishes to rely on the judgement of the Hon'ble Supreme Court in the case of Hindwire Industries 212 ITR 639 (SC) wherein it is held as follows: What falls for consideration in the present case is the interpretation of the expression from the date of the order sought to be amended in sub-section (7) of section 154 as it stood then It is obvious that the word `order' has not been qualified in any way and it does not necessarily mean the original order It can be any order including the amended or rectified order..... In view of these authorities taking the view that the word `any' in the expression order sought to be amended would mean even the rectified order, we are satisfied that the High Court was wrong in setting aside the decision of the Tribunal...... A copy of the above referred SC judgement is enclosed as Appendix 2 to this submission. 7.5 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ing under the two different columns and he also stated that there is no other business income except the speculative income as declared in the Income-tax return at two different places, whereas income arose one time from the said source. This is evident from the computation filed by the assessee at paper book page no.28. Considering the entire submission of the assessee and Affidavit filed, that the assessee has wrongly filled one income at two different places. 8. The assessee filed rectification application within the time as listed out (Supra) in the assessee s submission and the rectification application has not been accepted by the CPC as well as by the AO and the CIT(A) has also not accepted even if that is the mistake committed by the assessee while filing the return which can be corrected later on either by filing revised return of income or by way of application u/s 154 of the Act. In this regard, the assessee filed application u/s 154 of the Act which should have been accepted. The assessee itself accepted that it was a mistake on their part then it will also come u/s 154 of the Act for rectifying the mistake as per records. Further I note that the CIT(A) has dismissed ..... X X X X Extracts X X X X X X X X Extracts X X X X
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