2022 (7) TMI 272

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....cause the mistake as pointed out by the Assessing Officer is not a mistake apparent from record and is beyond the purview of the provisions of section 154 of the Act, the order passed by the Assessing Officer under section 154 and upheld by the CIT(A) is bad in law and be quashed. 03. Because on a proper consideration of facts and circumstances of the case it would be found that when the entire expenditure as claimed by the assesses on software development has been disallowed while framing the assessment under section 143(3), question of disallowance of any depreciation on the same would not arise. The reasoning given by the Assessing Officer and upheld by the CIT(A) is misconceived, the addition made be deleted. 04. Because the CIT(A) ....

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....was passed on 30.12.2010 and the matter was contested before ld. CIT(A) and such appeal was dismissed vide order 09.11.2012 and therefore the assessment order passed u/s. 143(3) dated 30.12.2010 cannot be rectified as specific provision of Section 154(1A) specifically exclude such orders for being liable for rectification u/s. 154 of the Act and therefore, it was prayed that the assessment order passed u/s. 154/143(3) dated 14.10.2013 rectifying the order passed u/s. 143(3) dated 30.12.2020 be quashed as void ab initio. 5. The ld. DR, on the other hand, argued that the original order passed u/s. 143(3) dated 30.12.2010 did not relate to the rectification passed u/s. 154 of the Act and it was submitted that the provisions of Section 154(1A)....

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....onal ground of appeal is rejected and the ld. AR was asked to proceed with his regular grounds of appeal. 8. The ld. AR submitted that it is undisputed fact that in the original assessment proceedings, the software development expenses were disallowed keeping in view the fact that assessee had not deducted TDS and the rectification u/s. 154 has been done by disallowing the depreciation on such software development expenses. It was submitted that for rectification u/s. 154, it is necessary that the mistake should be apparent from record which is not the case in the present case. The Assessing Officer in the original assessment proceedings had disallowed the software development expenses for non deduction of tax and not for non-proving the g....