TaxTMI 
TaxTMI 
2023 (3) TMI 142
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....hpa Jhakri Joint Venture, Mumbai vs. ACIT in ITA No. 1190/Mum/2010 order dated 15.2.2011, wherein in para 8, the Coordinate Bench of Mumbai Tribunal has held as follows: "8. In any case, the question as to whether the proceedings resulting in the refund were delayed for reasons attributable to the assessee is a question the answer to which will depend on an examination of the record and the facts that are relevant for the decision and even after all the facts have been gathered, there could still be possibility of an argument as to whether the delay was attributable to the assessee. For example, even if an adjournment was sought for by the assessee before the CIT(A), and an unduly long one at that, still if the CIT(A) had in fact adjourned the matter, a question may arise as to whether it can be said that the delay is attributable to the assessee in the light of the fact that the CIT(A) himself adjourned the matter and did not consider the request of the assessee as unreasonable or for an unduly long period. These are all matters on which more than one view is possible and it is only after a long drawn process of argument or debate that the rival view-points can be established. S....
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....rmation on 06.05.2013. As a result, the A.O. was constrained to directly call for information from REC and PGCIL. The REC filed the information vide letter dated 20.05.2013 and PFCIL. The letter dated 29.07.2013 issued to PGCIL remained un-complied with. Finally the assessee company filed the necessary ledger extracts on 13.09.2013 along with written submissions and appeal effect was finally carried out. iv.) In these facts & circumstances, the A.O. held that delay in issue of refunds was attributable to the assessee and not to the department as per section 244A(2) of the Act. Thus excess interest of Rs. 34,02,944/- was allowed to the assessee company. For carrying out rectification u/s. 154 of the Act, the A.O. had allowed an opportunity to the assessee company fixed the hearing on 09.03.2017 but there was no compliance by the assessee company. The A.O. thus held that the assessee company had nothing to say in the matter and it had no objection to said rectification u/s. 154 of the Act. The A.O. held that delay in issue of refund u/s. 244A was attributable to the assessee and excess interest of Rs. 34,02,944/- granted earlier was accordingly withdrawn. v.) Since the A.O. had g....
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....ordance with law as in force during the said assessment year even if it relates back to an earlier year. The question is accordingly answered in favour of the revenue and against the assessee." vii.) The Hon'ble Supreme Court in the case of L. Hirday Narain vs. ITO (78 ITR 26) held that exercise of power to rectify an error apparent from the record is conferred upon the Income-tax Officer in aid of enforcement of a right. The Income-tax Officer is an officer concerned with assessment and collection of revenue, and the power to rectify the order of assessment conferred upon him is to ensure that injustice to the assessee or to the revenue may be avoided. It is implicit in the nature of the power and its entrustment to the authority invested with quasi-judicial functions under the Act, that to do justice it shall be exercised when a mistake apparent from the record is brought to his notice by a person concerned with or interested in the proceeding. The High Court was, in our judgment, in error in assuming that exercise of the power was discretionary and the Income-tax Officer could, even if the conditions for its exercise were shown to exist, decline to exercise the power. vi....
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....l by the revenue, the Tribunal also upheld the AAC's order. On reference, the Hon'ble Karnataka High Court held that to attract the provisions of section 154, there must be a mistake and it must be a mistake apparent from the record. Overlooking a mandatory provision of law which leaves no discretion to the taxing authorities like admission to tax, surcharge or interest is a mistake apparent from record. Conditions under section 34(3)(a) have to be complied with and unless they are complied with an assessee is not entitled to claim the development rebate under section 33 of the Act. Allowing the concession of development rebate to an assessee who had not fulfilled the conditions specified was a mistake apparent from the record because the grant of development rebate was by overlooking the mandatory provisions of section 34(3)(a) of the Act. This mistake was a mistake apparent from the records and, therefore, attracted the provisions of section 154. Therefore, the ITO was justified in rectifying the assessment to withdraw the excess development rebate already allowed. ix.) The Hon'ble Punjab & Haryana High Court in the case of CIT vs. Ram Nath Prem Kumar (124 ITR 404) ....
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....case of Shiv Shakti Traders vs. ACIT (139 tilonann.com 193) held that where Assessing Officer completed assessment under section 143(3) and thereafter he, on basis of audit objection to effect that assessee had made payments for purchasing of trading goods in violation of provisions of section 40A(3) passed a rectification order under section 154, then overlooking mandatory provision of law in original assessment was held to be an apparent mistake of law rectifiable under section 154 of the Act. The observations of Hon'ble Delhi ITAT in para-10 are reproduced as under: "10. Perusal of the order under section 154 reveals that during the certificatory proceedings the Ld. AO required the assessee to show cause as to why its income be not recomputed as payments amounting to Rs. 23,72,40,000/- for expenditure made in violation of section 40A(3) of the Act were liable to be disallowed. Notice under section 154 dated 5-7-2018 was duly received by the Ld. AR of the assessee who appeared on 16.7.2018 but did not provide any reply and requested for adjournment which was granted. The hearing was adjourned to 19-7-2018 but on that date also neither the assessee nor the Ld. AR filed any r....
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....e of notice under section 154 is within the ambit of section 154 and it is a mistake apparent from record. It was further held that Revenue had intended to rectify the mistake regarding the amount of bad and doubtful debts is debited to the provision for bad and doubtful debts account and the deduction admissible under section 36(1)(vii) is limited to the amount by which such debt or part thereof exceeds credit balance in the provision for bad and doubtful debts account. Therefore, such a mistake apparent from record was to be rectified. The Hon'ble Mumbai ITAT in the case of GTC Industries vs. DCIT (104 ITD 86) had an occasion to adjudicate the similar matter. In said case, the assessee company's claim for deduction in respect of provision for bad and doubtful debts was allowed in the assessment under section 143(3) of the Act. The Assessing Officer, however, disallowed the same subsequently, by invoking section 154 on the ground that the said provision was not an admissible deduction, as according to him the making of a provision would not be regarded as 'write off'. On appeal, the Commissioner (Appeals) upheld the impugned disallowance. On second appeal, the as....