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TMI Blog2012 (5) TMI 753X X X X Extracts X X X X X X X X Extracts X X X X ..... 0-A of the Income Tax Act, 1961 ('the Act') is directed against the judgment and order dated 09.12.2011 as passed by the Income Tax Appellate Tribunal, Jodhpur Bench, Jodhpur ('the ITAT') in Appeal No.210/JU/2010 relating to the assessment year 2000-01. The revenue seeks to maintain this appeal on the question as to whether the ITAT has rightly affirmed the order dated 11.01.2010 whereby the Commissioner of Income Tax (Appeals), Udaipur ['the CIT(A)'] set aside the rectification order as passed by the Assessing Officer ('the AO') on 30.03.2007 under Section 154 of the Act. The relevant facts and background aspects could be noticed in brief in the following: The income tax return as filed by the assessee ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ct of the judgment in Mahendra Mills (supra) was sought to be nullified and it was made mandatory that depreciation must be allowed in the current year even if not claimed, was not applicable to the present case as it was applicable from the assessment year 2002-03. The learned AO in his order dated 30.03.2007 noticed the background aspects about the assessment earlier having been completed and the opinion of the Department and then, reproduced the submissions as made by the assessee in response to the notice under Section 154 of the Act and, thereafter, without any discussion, simply stated that the contentions of the assessee were not tenable and hence were rejected. The AO, thereafter, proceeded to re- compute the income in the manner ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he Act could not be applied to the assessment in question for the year 2000-01. The CIT(A) observed and held as under: 2.3 Decision. I have considered the submissions of the learned A/R. vis- a-vis the findings of the A.O. given the order under appeal. Ongoing through the order, it is seen that except the findings that the contention of the assessee is not tenable, the A.O. has not given any finding as to why the submissions of the appellant were not acceptable. It is a fact admitted by the A.O. in the order that the appellant has not claimed any depreciation in the computation of total income. Since the appellant has not claimed any depreciation, it is not known how it can be said that it is a mistake apparent from the record and ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he Hon'ble Apex Court in Mahendra Mills (supra) applied to the case at hands for the assessment year 2000-01. The ITAT proceeded to dismiss the appeal in the following: 2.5 We have heard both the parties. It is a settled law that disputable question of facts and law are not covered under the provisions of Section 154 of the Act. The mistake apparent from record cannot be rectified u/s. 154 of the Act. The Hon'ble Madras High Court in CIT vs Sree Senhavalli Textile Mills (P) Ltd., 259 ITR 77held that the interpretation of relevant provisions of the Act by the Hon'ble Supreme Court settles the law and unless the subsequent amendment is expressly given retrospective effect the law laid down by the Hon'ble Supreme Court wil ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rence. It is further submitted that the decision in Mahendra Mills (supra) is not applicable to the facts of the present case and the ITAT has been in error in relying on the same. After having heard the learned counsel for the appellant and having perused the material placed on record, we are not persuaded to consider interference in the order as passed by the ITAT affirming the order of the CIT(A) setting aside the order passed by the AO in the purported exercise of powers under Section 154 of the Act. The scope and applicability of Section 154 of the Act has been delineated by the Hon'ble Supreme Court in the case of T.S Balaram, Income-Tax Officer, Company Circle IV, Bombay vs. Volkart Brothers and others: (1971) 82 ITR 50 as ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r assessment year 2000-01 even if it has not been claimed; or as to whether amendment to Section 32 of the Act in 2002-03 has a prospective effect or a retrospective effect on the application of current year's depreciation and unabsorbed business losses and depreciation for the purpose of computation of Income tax, had been the disputable issues and had been of such questions of law which required further deliberation and discussion. Clearly, in view of the principles expounded and explained in T.S Balaram and Mepco Industries (supra), such aspects did not fall in the category of mistake apparent from the record and, therefore, could not have been dealt with under Section 154 of the Act. In the aforesaid view of the matter, we find t ..... X X X X Extracts X X X X X X X X Extracts X X X X
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