2011 (7) TMI 763 - HC - Income Tax

Application for rectification - seeking for credit to the extent of Rs. 11, 90, 97, 725 - Tribunal while passing the impugned order held that the revenue s earlier appeal was dismissed not on merits but only on the ground of not obtaining COD permission - The consideration of the application for rectification of a mistake is very much available in view of the non-consideration of the judgment of the jurisdictional High Court as on the date of the passing of the order. Accordingly we do not find any error committed by the Tribunal that calls for any interference nor any substantial question of law arises for consideration in this appeal.

Summary

Issues:
Rectification under Section 154 of the Income Tax Act based on non-consideration of a High Court judgment in an appeal.

Analysis:
The appellant, a financial services company, filed its return of income for the assessment year 2005-06, showing nil income but book profits under Section 115JB at Rs. 10,51,09,653. After an intimation under Section 143(1) was issued, the Assessing Officer gave credit for pre-paid taxes at Rs. 7,33,31,887. The appellant sought rectification for credit up to Rs. 11,90,97,725, but the credit was only given up to Rs. 11,33,31,887, with interest levied under Section 234C. The CIT (Appeals) allowed the appeal, deleting the interest levied by the Assessing Officer. The revenue appealed to the Tribunal, which dismissed the appeal due to lack of permission from the Chief Commissioner of Income Tax (COD). Subsequently, the revenue applied for rectification under Section 154, citing non-consideration of a High Court judgment. The Appellate Authority rectified the order, leading to the appellant's appeal to the Tribunal, which was dismissed, resulting in the current appeal.

The appellant argued that once the revenue's appeal was dismissed for lack of COD permission, they could not seek rectification, as the earlier proceedings had concluded. However, the Tribunal held that the earlier appeal dismissal was not on merits but due to procedural issues, allowing the revenue to apply for rectification based on an apparent mistake. The Tribunal noted that the High Court judgment was available before the order date, making its non-consideration a clear mistake on record. The High Court agreed with the Tribunal, stating that the revenue could seek rectification despite the previous appeal dismissal not being on merits. The Tribunal's decision to allow rectification based on the High Court judgment's non-consideration was upheld, with no substantial question of law for consideration.

Therefore, the appeal was dismissed as it lacked merits, affirming the Tribunal's decision to allow rectification under Section 154 based on the High Court judgment's non-consideration.