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TMI Blog2023 (3) TMI 1104X X X X Extracts X X X X X X X X Extracts X X X X ..... ction of the Assessing Officer by rejecting the application made by the assessee u/s 154 for allowing the enhanced claim of depreciation of Rs. 48,88,526/-. Instead of Rs. 41,44,887/-." 2. At the outset, it is noted that there is a delay in filing the present appeal by 74 days as pointed out by the Registry. After taking into consideration the Affidavit filed by the assessee company as well as hearing the Ld. DR who had not raised any specific objection, the delay on account of COVID-19 pandemic is hereby condoned and the appeal is admitted for adjudication on merits. 3. Briefly the facts of the case are that the assessee filed its return of income declaring total income of Rs. 1,28,30,090/- which was taken up for scrutiny and assessment ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e claim of the assessee does not fall within the ambit of provisions of Section 154 of the Income Tax Act, 1961. It was held by the AO that mistake was committed by the assessee while filing its return of income under section 139(1) of the Act and assessee had the option of filing the revised return under section 139(5) to rectify its mistake and since the same has not happened the application of the assessee u/s 154 was rejected by the AO. 5. Being aggrieved, the assessee carried the matter in appeal before the Ld. CIT(A) and it was submitted that during the course of assessment proceedings, the assessee brought to the notice of the AO that while filing its return of income it had inadvertently and wrongly taken opening balance of WDV of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d attention that after giving effect of enhanced depreciation of Rs.4888526/-, Income Tax refund for A.Y 2016-17 comes to Rs.319583/- instead of Rs.73710/-. We wish to submit following documents for your kind perusal: (a) Copy of assessment order for the A.Y 2016-17 dated 11.12.2018 u/s 143(3) of the Income Tax Act, 1961 alongwith computation sheet. (b) Copy of depreciation chart for the A.Y 2016-17 as per Income Tax Act, 1961 showing correct opening balance of WDV of fixed assets as at 01.U4.2015 at Rs.27039004/-. You will observe from the depreciation chart that correct depreciation as per Income Tax Act for A.Y. 2016-17 comes to Rs. 4888526/-. (c) Copy of depreciation chart for the A.Y 2015-16 as per Income Tax Act showing WDV o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... and stands disposed of." 4. It is further submitted that the income tax proceedings are not adversarial proceedings. As to who is responsible for the mistake is not material for the purpose of proceedings under section 154; what is material is that there is a mistake- a mistake which is clear, glaring and which is incapable of two views being taken. The fact that mistake has occurred is beyond doubt. The fact that it is attributed to the error of the assessee does not obliterate the fact of mistake or legal remedies for a mistake having crept in. It is only elementary that the income liable to be taxed has to be worked out in accordance with the law as in force. In this process, it is not open to the Revenue authorities to take advantage ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... inions. A decision on a debatable point of law is not a mistake apparent from the record. 8. The plain meaning of the word 'apparent' is that it must be something, which appears to be so ex facie and is incapable of argument or debate. It, therefore, follows that decision on debatable point of law or fact or failure to apply the law to a set of facts, which remained to be investigated, cannot be corrected by way of rectification. A mistake apparent from the record is one, to point out which no elaborate argument is required. It must be a glaring, obvious or self-evident mistake. 9. Therefore, in view of the above submissions and judicial pronouncements relied on and as a matter of natural justice, you are requested to pass ord ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 5.4 On going through section 154 alongwith the judgement of the Apex Court in the case referred above [Goetz (India) Ltd. v. CIT (2006)] vis-a-vis the appellant's case, I find no infirmity in the AO's order by rejecting the rectification petition. The order of the AO is upheld." 7. Against the said findings and directions of the ld CIT(A), the assessee is in appeal before us. 8. The ld DR is heard and material available on record purused. Firstly, regarding the decision of Hon'ble Supreme Court in case of Goetze(India) Ltd. which has been relied by the Ld. CIT(A) NFAC, we find that the said decision is in the context of the power of the AO to admit any fresh claim during the course of assessment proceedings other than by way ..... X X X X Extracts X X X X X X X X Extracts X X X X
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