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TMI Blog2010 (5) TMI 54X X X X Extracts X X X X X X X X Extracts X X X X ..... ppeals) was of the opinion that the mistake had resulted in under assessment of income under Section 115JB to the said extent. It was also observed by the said Commissioner that the assessment was made by the Assessing Officer without an adequate enquiry or investigation. Held that: that insofar as the computation of income under Section 115JB is concerned, the powers of the Assessing Officer are very limited. This is clear from the decision of the Supreme Court in the case of Apollo Tyres Ltd v. CIT: (2008 -TMI - 6081 - SUPREME Court) which, though it related to Section 115J, would be equally applicable to computation under Section 115JB - Once the profit and loss account was audited and duly certified by the statutory auditors to be in ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of Income Tax (Appeals). The provisions of Section 263 had been invoked by the Commissioner on the ground that the assessment order was erroneous and was prejudicial to the interest of the revenue. According to the Commissioner of Income Tax (Appeals), while calculating the book profits under Section 115JB of the said Act, sales commission of Rs 241.90 lacs claimed in the profit and loss account was not added back, even though this claim had been disallowed in calculating the total income under the normal provisions of the Act. The Commissioner of Income Tax (Appeals) was of the opinion that the mistake had resulted in under assessment of income under Section 115JB to the said extent. It was also observed by the said Commissioner that the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r of Income Tax (Appeals), who held the same to be an allowable expenditure inasmuch as the same was incurred by the assessee for its business purpose. 4. The learned counsel for the respondent/ assessee informs us that after the decision of the Commissioner of Income Tax (Appeals), the revenue preferred an appeal before the Income Tax Appellate Tribunal but the said appeal was dismissed. Thereafter, no further appeal was filed before this Court on this issue. As such, the issue had become final. The Tribunal, therefore, was of the view that undeniably the commission that was paid to the sole selling agent, which was a business expenditure, required to be deducted while calculating book profits under Section 115JB of the said Act. 5. In ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Officer or the Commissioner of Income Tax was purporting to make any adjustments as provided under the Explanation. Consequently, the Tribunal was absolutely right in concluding that the provisions of Section 263 of the said Act could not be attracted because there was nothing erroneous in the original order passed by the Assessing Officer. The Tribunal has correctly placed reliance on the decision of the Supreme Court in the case of Apollo Tyres Ltd (supra). The learned counsel for the respondent/ assessee also points out that the allowance has been made in the subsequent year as well as in the preceding year. No substantial question of law arises for our consideration. The appeal is dismissed. BADAR DURREZ AHMED, J V.K. JAIN, ..... X X X X Extracts X X X X X X X X Extracts X X X X
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