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TMI Blog2017 (6) TMI 497X X X X Extracts X X X X X X X X Extracts X X X X ..... Act, 1956. It is a fact that assessee has never followed Part - II of Schedule - VI to the Companies Act, 1956 and also its financial statements are not placed before Annual General Meetings. Accordingly, provisions of section 115JB are not applicable to the assessee. The same view was confirmed by various judicial pronouncements and also in assessee's own case for AY 2007-08 by the coordinate bench of this Tribunal. Rectification is possible when other parties agrees that it has no two possible views. Hence, rectification order passed by the AO is wrong considering the fact that the issue involved is disputed one as various Tribunals has given finding that provisions of section 115JB are not applicable to a banking company prior to ame ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e assessee was that MAT provisions were not applicable to the Bank. The CIT(A) - IV in his order dated 31/03/2009 held that the assessee was assessed in the status of company prior to 1969-70. Therefore, the assessee was a company as defined u/s 2(17)(iii), therefore, provisions of section 115JB are applicable. 4. On further appeal to ITAT, Hyderabad, though the assessee took ground of appeal on the issue of 115JB, the same was not entertained by the ITAT on the ground that the assessee did not obtain the approval from COD to pursue such issue. 5. Consequent to various orders passed by the CIT(A)/ITAT/263 order, in which the taxable income was determined under normal provisions since the tax payable was more in the case of normal prov ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the case. 2. The Learned CIT (A) erred in cancelling the order passed on 12/02/2015 u/s 154 in which demand of ₹ 52,17,63,800/ -, was raised by invoking provisions of Section 115JB, by holding that applicability of provisions of section 115JB to the assessee is debatable. 3. The Ld.CIT(A) failed to appreciate that the issue of applicability of provisions of Section 115JB has not been decided afresh in the order dated 12/02/2015. 4. The Ld.CIT(A) failed to appreciate that a mistake has crept in while giving effect to the orders of Higher Authorities, which was rectified in the order dated 12/02/2015. 5. The Ld.CIT(A) failed to appreciate that no fresh issue was decided in the order dated 12/02/2015, as the issu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... cel of assessment, AO was right invoking section 154 as the mistake was apparent from record. He further submitted that the Finance Act, 2012, with effect from 01/04/2013, in which Explanation 3 was inserted. The above amendment is clarificatory in nature and, hence, retrospective in nature as held by the Hon'ble Supreme Court in the case of Allied Motors while dealing with the disallowance u/s 43B. He further submitted that CIT(A) has wrongly allowed the appeal of the assessee overlooking the fact that AO has rectified the genuine mistake arising out of the assessment order. 11. Ld. AR submitted that prior to amendment u/s 115 JB in Finance Act, 2012, the MAT provisions were not applicable to banking companies as held by various cou ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... this tribunal in its order dated 06/08/2010 declined to entertain the appeal of the assessee for want of COD approval. It is worth to note that issue of 115JB was not material mainly because it has no impact on the taxable income of the assessee. Subsequently, the appeal on the original assessment and further modifications made by CIT u/s 263 order were appealed before the ITAT. When the consequential orders were issued, 115JB provisions were overlooked considering the fact that taxable income under normal provisions was more than the provisions of section 115JB. However, AO observed subsequently that the tax liability u/s 115JB is higher than the normal provisions. Accordingly, he served a notice to assessee u/s 154. Accordingly, assessee ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... cation order u/s 154 was passed by the AO. However, this issue was put to rest by the amendment in Finance Act, 2012. As per the provisions of section 154, mistake apparent on record can be rectified by the AO provided where the parties agree that two views on the point involved , not possible as held by the Gujarat High court in the case of Sarangapur Cotton Manufacturers, 152 ITR 251 (guj.) held that it is a disputed question on which two views are possible would depend upon the approach to the case and the attitude of the parties in the case. If the parties do not feel that two views are possible, then, there is no scope for consideration of such question. If computation, however difficult it may be, is made by the ITO with such computa ..... X X X X Extracts X X X X X X X X Extracts X X X X
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