9911796707
TMI Blog2015 (3) TMI 1343X X X X Extracts X X X X X X X X Extracts X X X X ..... y rather the assessee on merits has conceded this issue that the same is subject-matter of rectification u/s. 154 of the Act. As the issue is covered in the case of South India Steel Rolling Mills (1997 (2) TMI 10 - SUPREME COURT), we confirm the order of CIT revising the assessment. But the assessment cannot be directed to be reframed de-novo and AO will go into the issues raised by CIT in his order i.e. the issue of provision of leave encasement and provision of gratuity. - Decided against assessee. - I.T.A. No.769/Kol/2013 Assessment Year: 2008-09 - - - Dated:- 4-3-2015 - Shri Mahavir Singh, JM Shri Shamim Yahya, JJ. For the Appellant: Shri D. S. Damle, FCA For the Respondent: Shri Ravi Jain, CIT(DR) ORDER Shr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... isdiction. 4) For that on the facts and in the circumstances of the case, the order of the CIT directing the AO to make de novo assessment be set aside and/or modified. 3. Brief facts are that the assessee has filed its return of income for the relevant assessment year on 29-09-2008. The assessment was framed u/s 143(3) r.w.s. Section 115JB of the Act by the AO vide his order dated 29-04-2010. Subsequently the assessee vide letter dated 11-07-2012, which was received by the AO on 21-07-2012, pointing out that while assessing book profit u/s 115JB of the Act by the AO, the provision for leave encashment and for gratuity amounting to ₹ 37,54,202/- was not added back to under Clause of Explanation(1) to Section 115JB of the Act. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... to be added back to the profits of business. Following the same the Punjab Haryana High Court in the case of CIT Vs. National Hydro Electric Power Corporation Limited (45 DTR 117) and Delhi High Court in the case of CIT Vs IIpea Paramount (P) Ltd Vs CIT (192 Taxman 65) has held that unless provisions for post retirement benefits are estimated on scientific basis the same would be in the nature of provisions of unascertained liabilities so as to fall under clause (c) of the Explanation to section 115JB(2) of the Income-tax Act, 1961. In view of the foregoing we submit the non-addition of provision for gratuity and leave encashment aggregating to ₹ 37,54,202/- constituted 'mistake apparent from record' in the assessment or ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... l be presumed that you have nothing to say in the matter and the case will be decided on merits and existing record. In view of the above show-cause notice, the CIT-I Kolkata passed revision order directing the AO to carry out necessary verification of facts and figures. The assessee before CIT stated that application u/s.154 of the Act is pending before the AO on the same issue. But on merits, the assessee has not contested the issue. Aggrieved, against revision order passed by CIT, assessee came in appeal before Tribunal. 5. We have heard rival contentions and gone through the facts and circumstances of the cases. The only issue in this appeal of the assessee is that whether the mistake apparent from record rectifiable u/s 15 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... June, 2001 to an income-tax authority referred to in sub-section (1), the authority shall pass an order, within a period of six months from the end of the month in which the application is received by it, - (a) making the amendment; or (b) refusing to allow the claim.] It means that the AO has to carry out the rectification within a period of six months from the end of the month in which the application is received and the present case the application was received by the AO on 21-07-2012 and this application is to be disposed of on or before 31st January 2013. But inaction of the AO cannot be a handicap for the Revenue to carry out revision proceedings by the CIT for revising the assessment u/s 263 of the Act. Merely because the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... icer. As pointed out by the High Court, no question as to the competence of the Commissioner to exercise his powers of decision was raised by the assessee either before the Commissioner or before the Tribunal. Even otherwise there is no merit in this contention. Merely because the Income-tax Officer could have rectified the order, the Commissioner could not be precluded from exercising the power conferred on him under section 263. The power of rectification conferred on the Income-tax Officer under section 155 and the power of revision conferred on the Commissioner under section 263 are distinct powers. The principle that one is a special provision and the other in a general provision has no application. The revisional power conferred on th ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
