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TMI Blog2019 (1) TMI 394X X X X Extracts X X X X X X X X Extracts X X X X ..... licable to the short term capital gain was not involved in the appeal filed by the assessee before the CIT(A) and there was no decision or direction given by the CIT(A) on the said issue, the A.O. was not justified in changing the tax rate applicable to the short term capital gain while giving effect to the order of the CIT(A). There was thus a mistake in the order of the A.O. passed while giving effect to the order of the CIT(A) and the same being apparent from record, AO should have rectified the same by accepting the application filed by the assessee u/s 154. - Decided in favour of assessee. - I.T.A. No. 1271/Kol/2018 - - - Dated:- 14-11-2018 - Shri P.M. Jagtap, Hon ble Vice - President For the Assessee : Shri Subash Agarwal, Adv ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Ld. CIT(A) for disposing of the appeal of the assessee afresh. In pursuant to the direction of the Tribunal, the Ld. CIT(A) disposed of the appeal of the assessee afresh vide its order dated 21.06.2016 restricting the addition made by the AO on account of short term capital gain to ₹ 2,41,568/-. While giving effect to the said order of the Ld. CIT(A) dated 21.06.2016, the Assessing Officer calculated the tax payable by the assessee on short term capital gain @ 20%. According to the assessee, there was a mistake on the part of the AO in calculating the tax on short term capital gain @ 20% instead of 10% and he, therefore, filed an application u/s 154 seeking rectification of the said mistake. In support of the said application filed u/ ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r is bad in law and needs to be corrected by passing fresh order u/s 154/251/143(3). v. That it needs to be seen that during passing of an order u/s 251 giving effect to the Appellant Order, there is no scope for fresh enquiry or reassessment and only direction of Appellate Authority needs to be followed... 3. The Assessing Officer did not find merit in the application filed by the assessee u/s 154 for the following reasons: i. The order u/s 251 dated 13.07.2016 was passed complying the direction of Ld. CIT(A)-6, Kolkata vide his kind order dated 21.06.2016 and revised total income was determined at ₹ 5,07,080/- allowing relief (a) STCG of ₹ 4,56,148/- (b) Telephone Expenses of ₹ 8,733/-. ii. Nowhere in ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t effect of order dated 21.06.2016 of Hon ble CIT(A) was given by order u/s 251 dated 13.07.2016 on the revised total income after appeal effect by applying tax rate as per I.T. Act, 1961 for the relevant A.Y. wherein the amount of STCG was taken as per the direction given in the said order of CIT(A). ix. As stated in point 12 of your petition dated 28.02.2017, no fresh enquiry or reassessment was done in your case while passing order u/s 251 dated 13.07.2016. Tax was calculated only on the revised total income calculated as per the direction of Hon ble CIT(A). For the reasons given above, the Assessing Officer held that there was no apparent mistake in his order and accordingly rejected the application filed by the assessee u/s 1 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... CIT(A), the Assessing Officer for the first time charged the tax rate of 20% on short term capital gain on the ground that there was a mistake in the order originally passed u/s 143(3) in charging the tax rate at 10%.As rightly submitted by the learned counsel for the assessee, the scope of the order passed by the A.O. while giving effect to the order of the Ld. CIT(A) was limited and he should have confined himself to the direction and decision given by the Ld. CIT(A) on the issues raised by the assessee in the appeal. Since the issue relating to tax rate applicable to the short term capital gain was not involved in the appeal filed by the assessee before the Ld. CIT(A) and there was no decision or direction given by the Ld. CIT(A) on the ..... X X X X Extracts X X X X X X X X Extracts X X X X
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