9911796707
TMI Blog2020 (4) TMI 744X X X X Extracts X X X X X X X X Extracts X X X X ..... the findings of the Ld. CIT(A). Action of the AO in passing order u/s 154 coordinate Bench in the assessee s own case for the AY 1996-97 has upheld the findings of the Ld. CIT (A) holding that as per the settled law the only mistake apparent from record can be rectified u/s 154 of the Act and a debatable issues cannot be said to be a mistake apparent from record. - Decided against revenue. - ITA No. 4219/MUM/2018 - - - Dated:- 18-2-2020 - Shri M. Balaganesh (AM) And Shri Ram Lal Negi (JM) For the Assessee : Shri Rajan Vora Nikhil Tiwari (ARs) For the Revenue : Shri R. Manjunatha Swamy (CIT) ORDER PER RAM LAL NEGI, JM The revenue has filed the present appeal against the order dated 03.03.2018 passed by the Commissioner of Income Tax (Appeals)-1 (for short the CIT(A), Mumbai, for the assessment year 2007-08, whereby the Ld. CIT(A) has partly allowed the appeal filed by the assessee against the assessment order passed u/s 143 (3) of the Income Tax Act, 1961 (for short the Act ). 2. Brief facts of the case are that the assessee filed its return of income for the assessment year under consideration declaring total income of ₹ 1284,54,70,964 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n pertaining to foreign currency convertible bonds (FCCB) utilized for general purpose business and not with respect to capital account is in the nature of capital loss. The Ld. DR further submitted that the Ld. CIT (A) has wrongly held that the order passed by the AO u/s 154 of the Act is bad in law as section 154 confers powers to rectify the mistake apparent from record. The Ld. DR. further submitted that since the Ld. CIT (A) has wrongly deleted the addition made by the AO, the said order may be set aside and the order passed by the AO may be restored. 5. Per contra, the Ld. counsel for the assessee submitted that this issue is covered in favour of the assessee by the judgment of the Hon ble Supreme Court in the case of Tata Locomotive and Engineering Company Ltd. (60 ITR 405 SC) the judgment of the Hon ble Delhi High Court in the case of CIT vs. Jagjit Industries Ltd. (2010) 191 Taxman 54 (Delhi) and the judgment of the Hon ble Madras High Court in the case of CIT vs. PVP Ventures (2012) 23 taxmann.com 286 (Madras). The Ld. counsel further submitted that since the order passed by the Ld. CIT (A) is in accordance with the law laid down by the Hon ble Supreme Court and the Hi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... cord must be an obvious and patent mistake and not something which can be established by a long drawn process of reasoning on points on which there may conceivably be two opinion. As seen earner, the High Court of Bombay opined that the original assessments were in accordance with law though in our opinion the High Court was not justified in going into that question. In Satyananrayn Laxminarayan Hedge v. MallikarjunBhavanappa Tirumale (1960) 1 SCR 890, this court while spelling out the scope of the power of a High Court under article 226 of the Constitution ruled that an error which has to be established by a long drawn process of reasoning on points where there may conceivably be two opinions cannot be said to be an error apparent on the fact of the record. A decision on a debatable point of law is not a mistake apparent from the record.- See SidhramappaAndannappaMani v. Commissioner of Income Tax ( 1952) 21 ITR 333 (Bom). The power of the officers mentioned in section 154 of the Income Tax Act, 1961, to correct any mistake apparent from the record is undoubtedly not more than that of the High Court to entertain a writ petition on the basis of an error apparent on the face ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Reserve Bank to utilize the commission in its business of manufacture of locomotive boilers and locomotive for buying capital goods. That was quite an independent transaction, and it is the nature of this transaction, which has to be determined. In our view it was not a trading transaction in the business of manufacture of locomotive boilers and locomotive it was clearly a transaction of accumulating dollars to pay for capital goods, the first step to the acquisition of capital good. If the assessee had repatriated $ 36,123.02 and then after obtaining the sanction of the Reserve Bank remitted $ 36,123.02 to the U.S.A., Mr. Sastri does not contest that any profit made on devaluation would have been a capital profit. But in our opinion, the fact that the assessee kept the money there does not make any difference especially, as we have pointed out, that it was a new transaction which the assessee entered into, the transaction being the first step to acquisition of capital goods. In the view we have taken it is really not necessary to discuss cases cited at the bar because none of the cases are exactly in point. In our view the High Court was right in answering the questions ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Total 1,64,41,67,900 12. The aforesaid detail shows that the assessee has been consistently following the same treatment for all the subsequent. During the course of original assessment proceedings, while responding the query on section 14A of the Act, the assessee has specifically stated that foreign currency convertible bonds were used for capital account purposes. The revenue has not rebutted the fact that the assessee has followed the same treatment in earlier years. The Ld. counsel invited our attention to page 147 of the paper book wherein the assessing officer has reproduced the assessee s submission in its order. We notice that the assessee has contended before the AO that as per the settled law foreign exchange gain on capital account transaction is not chargeable to tax, therefore, the case is covered in favour of the assessee. Hence, we find merit in the contention of the Ld. counsel that there is no infirmity in the findings of the Ld. CIT(A). 13. So far as the action of the AO in passing order u/s 154 of the Act is concerned, the coordinate Bench in the assessee s own case ITA No. 1075/Mum/2003 for the AY 1996-97 has u ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
