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TMI Blog2010 (9) TMI 721X X X X Extracts X X X X X X X X Extracts X X X X ..... MEMBER J. AND VIJAY PAL RAO, JUDICIAL MEMBER J. Shri H P Mahajani for the Appellant. Jitendra Yadav for the Respondent. ORDER This appeal by the revenue is directed against the order dated 21.07.2009 of CIT(A)-XXX, Mumbai arising from the order passed under section 154 of the Income Tax act, 1961 for the assessment year 2003-04. 2. The revenue has raised various grounds in this appeal, however, the only issue arises for our consideration and adjudication is whether in the facts and circumstances of the case, the learned CIT(A) is justified in quashing the order dated 16.01.2008 passed under section 154 of the Act. 3. Brief facts relevant to the issue are that the assessee filed its return of income on 28.10.2003 d ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... to the various legal and technical interpretation, therefore, this is not a mistake apparent on the face of record. Accordingly, he has quashed the order passed under section 154 of the Act vide impugned order. 5. Before us, the learned DR has submitted that the assessee is not entitled for deduction u/s 80M in view of the provisions of section 115-O(5) which came into force with effect from 1.04.2003 and thereby applicable to the assessment year under consideration. He has further contended that when the AO in the original assessment overlooked to apply the provisions of section 115-O then it is apparent mistake on the face of the assessment order and the same can be rectified by invoking the provisions of section 154 of the Act ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ancial year 2002-03, then the question arises whether the dividend which was received by the assessee during the Financial Year 2002-03, the provisions of section 115O are applicable or not. It is proper to quote the provisions of section 115-O as under : Tax on distributed profits of domestic companies. 115-O. [(1) Notwithstanding anything contained in any other provision of this Act and subject to the provisions of this section, in addition to the income-tax chargeable in respect of the total income of a domestic company for any assessment year, any amount declared, distributed or paid by such company by way of dividends (whether interim or otherwise) on or after the 1st day of April, 2003, whether out of current or accumulated p ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... (c) payment of any dividend, whichever is earliest. (4) The tax on distributed profits so paid by the company shall be treated as the final payment of tax in respect of the amount declared, distributed or paid as dividends and no further credit therefor shall be claimed by the company or by any other person in respect of the amount of tax so paid. (5) No deduction under any other provision of this Act shall be allowed to the company or a shareholder in respect of the amount which has been charged to tax under sub-section (1) or the tax thereon. [(6) Notwithstanding anything contained in this section, no tax on distributed profits shall be chargeable in respect of the total income of an undertaking or enterprise engaged in developing ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... plicability of the provisions of sub-section 115-O while allowing the deduction u/s 80M, however, since the amount of dividend received by the assessee prior to 1.4.2003 was not subject to the tax under the provisions of section 115-O(1), then the disallowance of deduction u/s 80M by applying the provisions is not a question which can be decided u/s 154 of the Act. The honourable jurisdictional High Court in the case of Godrej Agrovet ltd V/s DCIT (Supra) in paragraph 11 has held as under: 11. On these facts as they stand, it is impossible to contend that the assessee was not entitled to a deduction under section 80M. Significantly, the view of the AO was consistent with the decision of the Tribunal in the case of Castle Investment ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ctified u/s 154. Decision on a debatable point of law is not a mistake apparent from the record. Merely overlooking of certain facts or mandatory provisions of law which does not allow any discretion to the taxing authorities is a mistake apparent from the record. But a decision on a debatable point of law or when the law confers on the taxing authorities a discretion such discretion cannot be correct under the provisions of section 154 of Act. Thus, a mistake cannot be rectified u/s 154 of the Act when there is a debatable point of fact or law. When the issue in question involved is complex one of the facts as well as law, then it is not a patent and apparent mistake on the face of assessment order which can be rectified u/s 154. Acco ..... X X X X Extracts X X X X X X X X Extracts X X X X
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