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TMI Blog2016 (1) TMI 746X X X X Extracts X X X X X X X X Extracts X X X X ..... take apparent from record, which is sought to be rectified. The additions sought to be made by the Assessing Officer under the garb of rectification do not constitute mistake apparent from record. Therefore, the rectification order upheld by the CIT(A) should be cancelled. ii. Whether the assessee would be allowed depreciation on temporary wooden structures @ 15% or 100% is a debatable issue and cannot be called as a apparent mistake made in the assessment order. Therefore, also the CIT(A) order is vitiated in law. iii. Without prejudice to the above, that there is no rectification possible u/s 154 of the Income Tax Act, 1961, the CIT(A) has erred in upholding the denial of the claim of depreciation on temporary wooden structures at 100 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hat he may be allowed to add, amend, alter, modify or forego any of the grounds at the time of hearing. 2. The brief facts of the case are that the appellant is a public sector undertaking bank. The return of income for the assessment year 2005-06 was filed on 29th October, 2005, disclosing total income of Rs. 174,45,44,140/-. Against the said return of income, the assessment was completed under Section 143(3) of the Income-tax Act, 1961 (for short "the Act") vide order dated 20th March, 2006 at a total income of Rs. 664,17,56,342/- after making several disallowances. Being aggrieved by this disallowances, the appellant preferred an appeal before the learned CIT(A). While the matter stood thus, the Assessing Officer sought to rectify the a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... iture was shown as furniture and fixture does not act as estoppel from claiming the deprecation @ 100%. The Assessing Officer brushing aside the explanation of the assessee bank passed an order dated 30.11.2007 under Section 154 of the Act withdrawing the excess depreciation of Rs. 12,14,26,196/-. Being aggrieved by this order, an appeal was filed before the CIT(A) who vide para 5.2 of his order dated 20th October, 2010 rejected the claim of the assessee, which reads as under: "I have carefully considered the assessment order and the submission made by the ld. AR on the above issue. As mentioned by the AO in the rectification order, the above claim of depreciation relates to assets taken over by the appellant company from GTB on amalgamat ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Accordingly, ground no. 4 is dismissed as such. Ground nos. 5 and 6 are general in nature which do not require any adjudication. 3. Before us, the learned Authorized Representative contended that the Assessing Officer ought not have exercised the jurisdiction under the provisions of Section 154 of the Act, inasmuch as, the issue of claim for depreciation @ 100% requires a debate and examination of material and therefore the Assessing Officer ought not have resorted to the provisions of Section 154 of the Act. 4. On the other hand, the ld. CIT(DR) relied on the orders of the lower authorities. 5. We heard the rival submission and perused the material on record. In the present appeal, we are required to adjudicate whether the Assessing Of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... iors which was purely wooden structures and the full details in respect of this claim of the expenditure have been filed at the time of original assessment proceedings. The Assessing Officer after considering the details filed allowed the claim in the original assessment proceedings. In the circumstances, the claim for deduction of depreciation cannot be withdrawn by exercising power under Section 154 of the Act based on the change of opinion. The Hon'ble Supreme Court in the case of Mepco Industries Ltd. Vs. CIT, 319 ITR 208, held that the right to rectify the mistakes under Section 154 of the Act cannot be invoked in the case of change of opinion. A rectifiable mistake is a mistake which is obvious and patent and not something which has t ..... X X X X Extracts X X X X X X X X Extracts X X X X
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