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TMI Blog2021 (6) TMI 127X X X X Extracts X X X X X X X X Extracts X X X X ..... clause (iii) of Explanation 1, there will be Nil deduction on this count. Nothing has been said in the written submission to counter this position. Secondly, the amount of deduction u/s 80IA(4) computed in the normal computation of income would also not go to reduce the `book profit u/s 115JB. Assessment order was subject matter of appeal before the ld. CIT(A) and hence power of revision was ousted - In this regard, we find that Explanation 1(c) to section 263 provides that: where an order passed by the AO has been the subject matter of appeal, the powers of CIT under the section shall extend and shall be deemed always to have extended to such matters as had not been considered and decided in such appeal. Assimilating the fact ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... S.S.Viswanethra Ravi, Judicial Member For the Assessee : None For the Revenue : Shri J.P. Chandrakar ORDER PER R.S. SYAL, VP : This appeal by the assessee arises out of the order dated 26-03-2018 passed by the Principal Commissioner of Incometax- 2, Aurangabad u/s.263 of the Income-tax Act, 1961 (hereinafter also called the Act ) in relation to the assessment year 2013-14. 2. Briefly stated, the facts of the case are that the assessee filed its return of income declaring Nil income after adjustment of brought forward losses of earlier years. The assessment was completed u/s.143(3) on 14-03-2016 determining total income at ₹ 54,42,770/- by making disallowance u/s.40(a)(ia) and also not allowing deduction ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... pplying the law to the facts of the case, which rendered the assessment order erroneous and prejudicial to the interest of Revenue. 4. The assessee has submitted through written submissions that there was brought forward loss which was also to be deducted in computing the book profit u/s.115JB of the Act and if such loss is considered, there won t be any difference in the computation of income under the regular provisions and u/s.115JB of the Act. However, no such computation showing Nil difference in income under both the scenarios has been placed on record. 5. The case of the assessee is that the amount of brought forward business loss would reduce `book profit under section 115JB as under the normal computation of income. In th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e matter, this part of the assessment order cannot be said to have merged with the order of the ld. CIT(A) so as to bar revision u/s.263 of the Act. 7. It is clear from the afore noted facts that the AO did not apply section 115JB which ought to have been applied. This brings us to a situation where the AO failed to apply the provisions of the Act in terms of section 115JB of the Act. The assessee in its written submission has relied on the judgment of Hon ble Supreme Court in the case of Malabar Industrial Co. Ltd. Vs. CIT (2000) 243 ITR 83 (SC) . This judgment has approved the validity of the application of section 263, inter alia, in a case of incorrect application of law and the assessment order has been passed without application ..... X X X X Extracts X X X X X X X X Extracts X X X X
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