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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 ..... ade the impugned additions under the regular provisions of the Act, obviously, under Section 143(3) & also committed error of law in upholding the deletion of addition of Rs.7,49,672/- and Rs.34,44,754/-. A.O. should have considered the plea of the assessee also before holding that he is proceeding under Section 143(1)(ia), and in pursuance of notice under Section 143(2) and 142(1), but he should have considered the asseess's claim under Section 115JB, which has not been and as such, rejected the plea of the assessee in spite of taking note of the fact that assessee has shown the book profit of Rs.2,05,86,930/- under Section 115JB - The matter is remanded to the A.O. for fresh consideration to decide whether the assessment is required to be made under Section 115JB or under Section 143(3) - in favour of assessee by way of remand. - T.A. No. 54 of 2011 - - - Dated:- 7-9-2012 - MR. APARESH KUMAR SINGH J. For the Appellant: Mr. Deepak Roshan, Sr. S.C.(I.T.) Mr. Amit Kumar, Adv. Ms. Rupa Kumari, Adv. For the Respondent: Mr. Binod Poddar, Sr. Advocate Mr. Mahendra Choudhary, Adv. Ms. Darshana Poddar, Adv. Mr. Piyush Poddar, Adv. Ms. Amrita Sinha, Adv. Heard learned coun ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ,754.17. Some of the expenses were also found unverifiable 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) vide order dated 23.01.2009. The C.I.T. (Appeal) also considered each and every component which has been considered by the A.O. and thereafter, deleted the above addition which could have been done only in regular assessment under Section 143(3) only and not under Section 115JB.. However, while considering ground no.4, the C.I.T. (appeal) held that the AO has added back the sum of Rs. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e Court clearly held that such enquiry is beyond the scope under Section 115JB. According to learned counsel for the appellant, the assessee submitted returns of his income as 'NIL' and he has right to submit such returns in a case where his case is squarely covered under Section 115 JB which is a special provision for the Companies who are showing less profit than the profit shown in previous years to the relevant year. The provision has been made for taxing such Companies also and in that situation also, some tax can be imposed. The complete proceeding for assessment in such a situation has been given under Section 115 JB wherein the provision has been made with respect to the computation of income and provision for disallowance on certain components whereas some permissible depreciations are allowed. It is submitted that in view of the fact that the petitioner submitted his returns under Section 115JB and the A.O. in his order itself, very clearly 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t 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 this juncture, we may make it clear that the issue is not that whether addition made by the A.O. was rightly deleted by the C.I.T.(Appeal) and the issue before us is only with respect to the nature of the order for the purpose of finding out whether under which provision of Section 143(3) or Section 115 JB, the A.O. or the C.I.T.(Appeal) proceeded to decide the matter. As we have already made clear that A.O. decided the matter as per provisions of Section143(3), the C.I.T.(Appeal) also proceeded to delete the addition by examining the books of account and relevant material facts and not on the ground that the A.O. had no jurisdiction to question the correctness of the audited accounts, balance sheet, books of accounts under Section 115JB, even C.I.T.(Appeal) also proceeded to examine the matter under Section 143(3) a ..... X X X X Extracts X X X X X X X X Extracts X X X X
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