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TMI Blog2018 (11) TMI 351X X X X Extracts X X X X X X X X Extracts X X X X ..... ious process. It does not mean that the appellant can have the licence to commit a mistake. However, since neither the adjudicating authority nor the Commissioner (Appeals) has given any finding on the acceptance or otherwise by the Income Tax authorities of the revised return claimed to have been filed by the appellant, a factual finding is required to be given. Matter is remanded back to the file of the adjudicating authority, the assessee-appellant directed to furnish revised return as well as income tax assessment Order based on its revised return to the satisfaction of the lower authority and the lower authority shall pass a fresh Order - appeal allowed by way of remand. - Appeal No.: E/40018/2018 - Final Order No. 42748/2018 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... bona fide mistake; immediately on being pointed out, the appellant had filed a revised income tax return on 16.02.2016 itself by withdrawing its claim of depreciation and that the Income Tax authorities have thereafter accepted the above revised return and passed an assessment Order as well. 4.2 Ld. Advocate further submitted that the revised return was filed prior to issuance of the Show Cause Notice which is dated 05.05.2016. In its reply to the Show Cause Notice, the said fact was brought to the notice of the adjudicating authority, but assessment Order based on the revised return could not be furnished before the adjudicating authority since the assessment Order was passed only subsequently. He further submitted that the copy of the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sessment Year 1999-2000 and in the revised returns for the subsequent year? 7.2 The relevant observations of the Hon ble High Court are as under : 17. From the facts narrated above, it can be seen that the appellant, though entitled to one of the two benefits, availed both the benefits. After detection by the Preventive Unit, the appellant chose to file an application for rectification under Section 154 of the Act as well as revised returns in respect of the Assessment years 1999-2000 and 2000-2001. They were accepted. Insofar as the Assessment year 1998-99 is concerned, the time-limit for filing a revised return had already expired and the attempt of the appellant to file application for rectification under Section 154 of th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the appellant is entitled to succeed. 8. I also note that the Hon ble High Court of Gujarat at Ahmedabad had considered an identical issue in the case of Commissioner of C. Ex. Cus., Surat-II Vs. M/s. Nish Fibres reported in 2010 (257) E.L.T. 81 (Guj.) and after considering various decisions, has ruled as under : 13. In view of the above discussion, we are of the view that the position is well settled in law. The whole idea is that the assessee should not be permitted to claim double benefit, i.e. under the Income Tax Act as well as Central Excise Rules. Admittedly, the appellant has not claimed the benefit under the Income Tax Act and the claim regarding depreciation was withdrawn by filing the revised return and that ..... X X X X Extracts X X X X X X X X Extracts X X X X
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