2019 (1) TMI 394 - AT - Income Tax

Tribunal directs Assessing Officer to rectify mistake in tax rate for short term capital gain

The Tribunal allowed the appeal of the assessee, setting aside the Ld. CIT (Appeals) decision and directing the Assessing Officer to rectify the mistake ... Rectification u/s 154 - changing the tax rate applicable to the short term capital gain while giving effect to the order of the CIT(A) - Held that:- AO for the first time charged the tax rate of 20% on short term capital gain on the ground that there was a mistake in the order originally passed u/s 143(3) in charging the tax rate at 10%. As rightly submitted by the learned counsel for the assessee, the scope of the order passed by the A.O. while giving effect was limited and he should have confined himself to the direction and decision given by the CIT(A) on the issues raised by the assessee in the appeal. Since the issue relating to tax rate applicable to the short term capital gain was not involved in the appeal filed by the assessee before the CIT(A) and there was no decision or direction given by the CIT(A) on the said issue, the A.O. was not justified in changing the tax rate applicable to the short term capital gain while giving effect to the order of the CIT(A). There was thus a mistake in the order of the A.O. passed while giving effect to the order of the CIT(A) and the same being apparent from record, AO should have rectified the same by accepting the application filed by the assessee u/s 154. - Decided in favour of assessee. Issues:1. Rectification order passed by the AO u/s 154 upheld by Ld. CIT (Appeals).2. Discrepancy in tax calculation on short term capital gain.3. Application filed by the assessee u/s 154 for rectification.4. Rejection of application by the Assessing Officer.5. Appeal to Ld. CIT(A) against AO's order u/s 154.6. Appeal to Tribunal against Ld. CIT(A)'s decision.Issue 1: Rectification order upheld by Ld. CIT (Appeals)The appeal was against the order of Ld. CIT (Appeals) wherein the rectification order passed by the Assessing Officer (AO) u/s 154 was upheld. The AO had calculated the tax on short term capital gain at 20% instead of 10% as per section 111A of the Income Tax Act, 1961. The Ld. CIT (Appeals) supported the rectification order, leading to the appeal before the Tribunal.Issue 2: Discrepancy in tax calculation on short term capital gainThe original assessment by the AO under section 143(3) had determined the total income of the assessee, including short term capital gain, at 10% tax rate as per section 111A. However, upon appeal, the quantum of short term capital gain was reduced, and the tax rate was unexpectedly increased to 20% by the AO while giving effect to the Ld. CIT (Appeals) order. The Tribunal found this change in tax rate unjustified as it was not part of the original appeal issue and directed the AO to rectify the mistake.Issue 3: Application filed by the assessee u/s 154 for rectificationThe assessee filed an application u/s 154 seeking rectification of the mistake made by the AO in calculating the tax rate on short term capital gain at 20% instead of the correct 10%. The application highlighted the discrepancy and requested correction based on the original assessment and subsequent orders.Issue 4: Rejection of application by the Assessing OfficerThe Assessing Officer rejected the application filed by the assessee u/s 154, stating that the tax rate was correctly applied based on the revised total income and the provisions of the Income Tax Act for the relevant assessment year. The AO argued that the direction from the Ld. CIT (Appeals) did not mandate a 10% tax rate on the remaining short term capital gain amount.Issue 5: Appeal to Ld. CIT(A) against AO's order u/s 154The assessee appealed to the Ld. CIT (Appeals) against the AO's order u/s 154, seeking a correction in the tax rate applied on short term capital gain. The Ld. CIT (Appeals) dismissed the appeal, upholding the AO's decision, stating that the rectification order was fair and just. This led to the assessee appealing to the Tribunal against the Ld. CIT (Appeals) decision.Issue 6: Appeal to Tribunal against Ld. CIT(A)'s decisionThe Tribunal heard arguments from both sides and reviewed the case. It observed that the AO had erred in changing the tax rate on short term capital gain from 10% to 20% while giving effect to the Ld. CIT (Appeals) order. The Tribunal found the change unjustified as it was not part of the original appeal issue. Consequently, the Tribunal set aside the Ld. CIT (Appeals) decision and directed the AO to accept the application filed by the assessee under section 154, allowing the appeal.In conclusion, the Tribunal allowed the appeal of the assessee, highlighting the mistake made by the AO in changing the tax rate on short term capital gain and directing rectification based on the original assessment and appeal issues.