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TMI Blog2012 (10) TMI 58X X X X Extracts X X X X X X X X Extracts X X X X ..... hat the AO has not made the impugned additions under the regular provisions of the Act whereas the records show to the contrary thereby making the said finding perverse?" (ii) "Whether on the facts and in the circumstances of the case the learned ITAT has erred in law by impliedly upholding the deletion of addition of Rs. 7,49,672/- representing unverifiable transactions?" (iii) "Whether on the facts and in the circumstances of the Case the learned ITAT has erred in law by impliedly upholding the deletion of addition of Rs. 34,44,754/- representing disallowance under Section 40(a) (ia) of the Act?" 3. Learned counsel for the appellant submitted that in fact the assessee was assessed under Section 143(3) of the Income Tax Act, 1961, which ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ble expenses and thereafter, specifically in the operative part of the assessment order, ordered " Assessed under Section 143(3) of the I.T. Act, 1961 on a total income of Rs.67,52,390.00. Allowed B/f Losses if any." However, it appears that learned A.O. inadvertently or wrongly also ordered- "The computation as per 115 JB is modified accordingly" and "Charge interest as per Law. Penalty proceeding under Section 271(1)(c ) of the I.T. Act, 1961 is hereby initiated for the above. Issued D.N. with Challan." This clearly indicates that the assessment order was under Section 143(3) and not under Section 115 JB of the Act of 1961. 4. The assessee preferred appeal against the said assessment order which was partly allowed by the C.I.T.(Appeal ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... The Tribunal also took note of the fact that C.I.T. (Appeal) heard the assessee's appeal on the demand notice issued by the A.O. under Section115 JB and therefore, on the solitary issue of the rectification of the demand notice under Section 115 JB, the matter was restored to the file of the A.O. for recomputing the demand under Section 115 JB. 6. According to learned counsel for the appellant, it was a case of assessment under Section 143(3), whereas according to learned counsel for the assessee, it was assessment under Section 115JB. 7. Learned counsel for the assessee relied upon a judgment of Hon'ble Supreme Court delivered in the case of Apollo Tyres Ltd. Vrs. Commissioner of Income Tax reported in (2002) 255 ITR 273 (SC) wherein pu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ly mentioned that the computation is required to be as per Section 115JB and such finding has been upheld by the C.I.T.(Appeal), then it is a pure question of fact and that has been upheld by the Tribunal. Therefore, no question of law is involved in the present appeal. Otherwise also, on merit, there is no illegality committed by the C.I.T.(Appeal) as well as by the Tribunal in holding that the case of the petitioner is covered under Section 115 JB. 9. We have considered the submissions of the parties, perused all the facts of the case and reasons given by the A.O., C.I.T.(Appeal) and the Tribunal. 10. After going through the assessment order, annexure-1, we are of the considered opinion that the assessee may have submitted his returns s ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed accordingly." We are of the considered opinion that this assessment was under Section 143(3) of the Act and the two orders cannot coexist, one under Section 143(3) and another under Section115JB. Since in operative part of the order, the purpose was to be under Section 143(3) and that finds support from the reasons mentioned in the order, we are of the considered opinion that it was a mistake on the part of the A.O., who observed that the computation as per under Section 115JB is to be made. 11. The C.I.T.(Appeal) also proceeded to decide the matter as though it was a regular assessment under Section 143(3) and, therefore, after computing each and every addition made by the A.O., on facts, reversed the findings recorded by the A.O. At ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ccording to Tribunal, both committed mistakes. The Tribunal come to the conclusion that when the assessee paying more tax under Section 115 JB and even observed that it is no body's case that the regular assessment under the provisions of Section 143(3) would have fetched more tax to the Revenue. We do not find any reason for such observation when Tribunal was of the view that neither the A.O. nor the C.I.T. (Appeal) had appreciated the facts. The Tribunal also ignored this fact that the A.O. and C.I.T.(Appeal), both considered each and every fact, which is required to be considered under Section 143(3) and then in that situation, merely because of the one line in the operative part of the order contrary to the specific facts mentioned in t ..... X X X X Extracts X X X X X X X X Extracts X X X X
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