2009 (4) TMI 995

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....e at Rs. 47,89,370. The return was processed under s. 143(1) on 30th Oct., 2005 determining the total demand at Rs. 11,572 and the intimation was served on 23rd March, 2006. Thereafter the assessee filed rectification application on 10th April, 2006 to rectify in term of excluding long-term capital gain at Rs. 19,32,793 from taxation. The main ground of the assessee was that there was mistake which crept in the return in respect of offering tax on long-term capital gain on the sale of shares which were charged with securities transaction tax and the same was not taxable at all. The assessee clarified that the income of LTCG was offered in the return of income by mistake and sought rectification of the above amount by excluding from the taxa....

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....further enquiry was required. It was admitted that assessee made a mistake but since all the details were available with the AO, the AO is well within his powers to entertain the petition under s. 154 both legally and factually. Detailed written submissions were also placed on record. It was further submitted that the AO in the later year of asst. yr. 2006-07 has accepted further evidence and gave relief to the assessee vide order dt. 20th Dec., 2008, hence, the AO is well within the powers to rectify this, on the basis of the information which was already available on record at the time of filing the return itself. The learned counsel also raised legal issues with reference to claim relying on the decision of the Hon'ble Supreme Court in t....

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.... the authorities are obliged to act in accordance with law. Tax has to be collected only as per provisions of the Act. If an assessee, under a mistake, misconceptions or on not being properly instructed is over assessed, the concerned authority under the Act is obliged, required to assist such an assessee by ensuring that only legitimate taxes are determined as collectible. If a particular levy is not permissible under the Act, tax cannot be collected." Similar view is also expressed by the Hon'ble Bombay High Court in the case of Nirmala L. Mehta vs. A. Balasubramaniam, CIT & Ors. (2004) 191 CTR (Bom) 8 : (2004) 269 ITR 1 (Bom) as under : "The problem arose because the petitioner in her return for the asst. yr. 1988-89 filed on 30....

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.... Hon'ble Supreme Court in the case of Anchor Pressings (P) Ltd. vs. CIT (1986) 58 CTR (SC) 126 : (1986) 161 ITR 159 (SC) was pleased to hold that the jurisdiction under s. 154 of the Act to rectify a mistake is much wider than provided in order XLVII, r. 1 of the CPC 1908 and, therefore, relief can be allowed in the rectification proceedings if all the factual materials necessary for filing the relief were available on record and such relief cannot be availed merely because the (sic-assessee) has omitted to claim the same. Accordingly since it is submission of the assessee that all the details were filed in the record, we direct the AO to consider the petition and after verification allow the claim if long-term capital gain is not taxable u....