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TMI Blog2012 (7) TMI 73X X X X Extracts X X X X X X X X Extracts X X X X ..... ed by the Appellate Authorities. Consequently, no rectification proceeding would lie in such a case in view of Sub Section 1(A) to Section 154. Also, it becomes debatable even on questions of fact and therefore outside the purview of Section 154 as it is not a mistake apparent from the record. - Income Tax Appeal No. 6072 OF 2010, Income Tax Appeal No. 6073 OF 2010 - - - Dated:- 15-6-2012 - S J Vazifdar And M S Sanklecha, JJ. For Appellant : Mr. Vimal Gupta For Respondent : Mr. Madhukar Agarwal i/by Mint Conferers JUDGEMENT Per : M S Sanklecha, J : These two Appeals are filed by the Revenue under Section 260A of the Income Tax Act, 1961 (hereinafter will be referred to the said Act) from a common order of the Income ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... this is not a debatable issue and therefore the mistake is amenable to rectification under Section 154 of the Income Tax Act, 1961? 2. The facts relating to Assessment year 2000-01 relevant for the present appeals are set out hereunder: (a) On 30.11.2000, the Respondent filed its return of income for the assessment year 2000-2001 declaring its income at Rs. 9,75,307/-. Thereafter, the assessing Officer passed an order under Section 143(3) of the said Act enhancing the income to Rs. 10,09,23,600/. The Respondent/assessee took the matter in Appeal and consequent to the order of the CIT(Appeals), the income was revised to Rs.2,27,26,200/-. (b) Thereafter, consequent to an audit query, the Commissioner of Income Tax commenced proceeding ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t filed an appeal to the CIT (Appeal). (d) By an order dated 15.06.2006, the CIT (Appeals) held that reopening of assessment under Section 147 of the said Act is not sustainable in as much as the assessing officer could have no reason to believe that income chargeable to tax had escaped assessment. The CIT(Appeal) held that the present proceeding for reopening is only on account of a change of opinion and therefore outside the purview of Section 147 of the said Act. However, the CIT (Appeals) in his order did observe that once an order under Section 143(3) of the said Act has been passed by an Assessing Officer he is precluded from interfering with the said order except by way of rectification of mistake under Section 154 of the said Act. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 010 the Tribunal dismissed the appeal of the Revenue as the issue being debatable would not make it a mistake apparent on the face of the record for invoking Section 154 of the said Act. 3. In support of the appeal, Mr. Vimal Gupta the Advocate for the Revenue submits that in view of Section 35D(2)(c) (iv) of the said Act, the benefit of the same is available only where expenditure is incurred in connection with a public issue and admittedly in this case it is not a public issue but a private placement. Therefore the deduction granted was clearly an error apparent on record warranting rectification under Section 154 of the said Act and no question of the issue being debatable arises. 4. As against the above, Mr. Madhur Agarwal Advocate ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... to the same issue viz. allowability of deduction under Section 35D(2) of the said Act was considered and dropped by an order dated 29.03.2005 after the Respondent responded to the notice under Section 263 of the said Act. Therefore no rectification proceeding would lie in such a case in view of Sub Section (1A) to Section 154 of the said Act. Similarly, the reassessment order under Section 147 passed on 30.01.2006 by which this very issue viz. allowability of deduction of Rs.77,05,041/- under Section 35D of the said Act was considered and decided against the Respondent by the Assessing Officer. However, being aggrieved the Respondent took the matter in appeal to CIT(Appeals). On 15.06.2006, the CIT(Appeals) held that the proceeding for reop ..... X X X X Extracts X X X X X X X X Extracts X X X X
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