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TMI Blog2015 (11) TMI 268X X X X Extracts X X X X X X X X Extracts X X X X ..... n of total income by the assessee voluntarily or by the Learned AO in the original scrutiny assessment proceedings in accordance with law. However, the same was duly sought to be rectified by the Learned AO in section 154 proceedings as it is not a debatable issue and the said mistake is patent , glaring and very obvious AO had clearly mentioned the mistake sought to be rectified in the notice u/s 154 of the Act itself. We don't endorse the arguments of the Learned AR that when there is no computation under the head capital gains while determining the taxable income, the resultant capital loss cannot be set off against the business income. This is a glaring mistake committed by both assessee as well as by the Learned AO in original scrut ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... xed assets in its books of accounts and debited the same in the profit and loss account. But the impact of the same would be effected in the computation of income tax depreciation statement filed by the assessee. The Learned AO did not disturb the income tax depreciation figure claimed by the assessee. The assessee did not disallow the loss on sale of assets in the sum of ₹ 10,27,456/- voluntarily in the return of income. The Learned AO also omitted to disallow the same in the original scrutiny assessment proceedings u/s 143(3) of the Act. Later the Learned AO sought to rectify the said apparent mistake by issuance of notice u/s 154 clearly mentioning the mistake sought to be rectified by him. Later the assessment u/s 154 of the Act w ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... not indicate the apparent mistake from record and accordingly placed reliance on the decision of the Hon'ble Supreme Court in the case of Addl CIT vs Shreyas Gramin Bank reported in 2012 (9) TMI 518 - Supreme Court in support of his contentions. 6. In response to this, the Learned DR vehemently supported the orders of the lower authorities and stated that the Learned AO had clearly stated in the notice issued u/s 154 of the Act the mistake proposed to be rectified and hence the decision stated by the Learned AR is distinguishable to the facts of the instant case. 7. We have heard the rival submissions and perused the materials available on record. The facts stated hereinabove are not disputed by both the parties and hence are not ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on both sides. We have gone through the Notice under Section 154 of the Income Tax Act, 1961 [ 'Act', for short]. We find that the said notice is totally vague. The Assessing officer has not even indicated as to on what basis he has allowed excess set-off. Notice under Section 154 of the Act, therefore, was not maintainable. The second notice under Section 148 of the Act was issued squarely on the basis of notice under Section 154 of the Act. In the circumstances, the High Court was right in setting aside both the notices. We, therefore, see no reason to interfere with the impugned order. Accordingly, the civil appeal filed by the Department is dismissed with no order as to costs. 7.1 We are in total agreement with ..... X X X X Extracts X X X X X X X X Extracts X X X X
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