S.P. Jaiswal Estates Pvt. Ltd., Kolkata V. ACIT, CC-IV, Kolkata, Kolkata

ITA 1019/KOL/2010

• Counselvise Citation: [2013] 119 COUNSELVISE.COM (IT) 2953 (ITAT-KOLKATA)
• Duration Of Justice: 2 year(s) 10 month(s) 4 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 21-03-2013
• Appeal Filed By: Assessee
• Bench Allotted: C
• Assessment Year: 2005-2006
• Appeal Filed On: 17-05-2010
• Court: TRIBUNAL
• Department Lawyers: H N SINGH
• Assessee Lawyers: SUJAY SEN
• Keywords: Rectification of order; Retrospective amendment
• Section: 143(3); 244A; 234B; 115JB; 80G; 6; 28; 154; 15

Judgement Text

, C , IN THE INCOME TAX APPELLATE TRIBUNAL C BENCH: KOL KATA () BEFORE . . . . . . . . , /AND ! '! , ) [BEFORE SHRI P. K. BANSAL, AM & SHRI MAHAVIR SINGH, JM] # # # # / I.T.A NO. 1019/KOL/2010 '$% &' '$% &' '$% &' '$% &'/ // / ASSESSMENT YEAR: 200 5- 0 6 S. P. JAISWAL ESTATES PVT. LTD. VS. ASSISTANT CO MMISSIONER OF INCOME-TAX, (PAN:AAGCS5052F) CENTRAL CIRCLE-IV, KOLKATA ()* /APPELLANT ) (+,)*/ RESPONDENT ) DATE OF HEARING: 21.03.2013 DATE OF PRONOUNCEMENT: 21.03.2013 FOR THE APPELLANT: SHRI SUJAY SEN FOR THE RESPONDENT: SHRI H. N. SINGH, SR. DR - / ORDER PER BENCH: THIS APPEAL BY ASSESSEE IS ARISING OUT OF ORDER OF CIT(A), CENTRAL-I, KOLKATA IN APPEAL NO. 66/CC-IV/CIT(A),C-I/09-10 DATED 12.03.2010. ASS ESSMENT WAS FRAMED BY ACIT, C.C.IV, KOLKATA U/S. 143(3) OF THE INCOME-TAX ACT, 1961 (HE REINAFTER REFERRED TO AS THE ACT) FOR ASSESSMENT YEAR 2005-06 VIDE HIS ORDER DATED 17.12. 2007. SUBSEQUENTLY, ORDER U/S. 154 OF THE ACT WAS PASSED BY ACIT, C.C-IV, KOLKATA VIDE HIS OR DER DATED 13.10.2009 2. THE ONLY ISSUE INVOLVED IN THIS APPEAL OF ASSESS EE IS AGAINST THE ORDER OF CIT(A) CONFIRMING THE ORDER OF AO IN INVOKING THE PROVISI ONS OF SECTION 154 OF THE ACT RECTIFYING THE ASSESSMENT ORDER PASSED U/S. 143(3) OF THE ACT DATE D 17.12.2007. FOR THIS, ASSESSEE HAS RAISED FOLLOWING SIX GROUNDS: 1. FOR THAT IN VIEW OF THE FACTS AND IN THE CIRCUM STANCES OF THE CASE THE LD. CIT(A) ERRED IN CONFIRMING THE ACTION OF AO IN INVOKING THE PROV ISIONS OF SECTION 154 FOR RECTIFYING THE ORDER PASSED U/S 143(3) DT 17. 12.2007. IN VIEW OF THE FACTS AND IN THE CIRCUMSTANCES THE ACTION OF CIT(A) IS WHOLLY UNJUSTIFIED, UNCALLED FO R, BAD IN LAW AND VOID AB INITIO AND THEREFORE LIABLE TO BE QUASHED/CANCELLED. 2. FOR THAT IN VIEW OF THE FACTS AND IN THE CIRCUMS TANCES OF THE CASE THE LD. CIT (A) ERRED IN CONFIRMING THE ACTION OF AO IN RECTIFYING THE OR IGINA1 ORDER U/S 143(3) DT 17. 12.2007 WITHOUT CONSIDERING THE SETTLED LAW THAT A MISTAKE WHICH IS NOT AN OBVIOUS AND PATENT ONE AND WHICH CONCERNS A DEBATABLE ISSUE ON WHICH CONCE IVABLY TWO OPINIONS ARE POSSIBLE CANNOT BE RECTIFIED. THUS, IN VIEW OF THE FACTS AND IN THE CIRCUMSTANCES THE ORDER PASSED U/S 154/ 143(3) LATER CONFIRMED BY THE CIT(A) IS WH OLLY UNJUSTIFIED, UNCALLED FOR, BAD IN LAW AND VOID ABINITIO AND THEREFORE LIABLE TO BE QU ASHED/CANCELLED. 3. FOR THAT IN VIEW OF THE FACTS AND IN THE CIRCUMS TANCES OF THE CASE THE LD. CIT (A) ERRED IN CONFIRMING THE ACTION OF AO IN DISA1LOWANCE OF D EDUCTION U/S 80G WHILE COMPUTING THE 2 ITA NO.1019/K/2010 S. P. JAISWAL ESTATES PVT. LTD. AY: 2005-06 TOTA1 INCOME UNDER THE NORMA1 PROVISIONS OF THE ACT AND IN VIEW OF THE FACTS AND IN THE CIRCUMSTANCES OF THE CASE SUCH A1LOWANCE MAY KINDLY BE DIRECTED TO BE GRANTED. 4. FOR THAT IN VIEW OF THE FACTS AND IN THE CIRCUMS TANCES OF THE CASE THE LD. CIT(A) ERRED IN CONFIRMING THE ACTION OF AO IN MAKING ADDITION O F PROVISIONS FOR DEFERRED TAX AMOUNTING TO RS. 34,31,000/- WHILE COMPUTING THE BO OK PROFIT U/S. 115JB AS THERE WAS NO MISTAKE APPARENT FROM THE RECORD IN THE ORIGINA1 OR DER U/S 143(3) AND AS NO SUCH MISTAKE AT ALL EXISTED AT THE TIME OF FRAMING ORIGINA1 ASSE SSMENT AND MOREOVER WHEN THE ORIGINA1 ORDER U/S 143(3) WAS NON-EXISTENT DUE TO SUBSEQUENT ORDER PASSED U/S 251/143(3) AT THE TIME OF PASSING AN ORDER U/S 154. THUS, IN VIEW OF THE FACTS AND IN THE CIRCUMSTANCES THE ACTION OF AO IN ADDING BACK THE PROVISION FOR DEFER RED TAX WHILE COMPUTING THE BOOK PROFIT AND LATER ON CONFIRMED BY THE CIT (A) IS WHO LLY UNJUSTIFIED, ILLEGA1 AND BAD IN LAW AND IN VIEW OF THE FACTS AND IN THE CIRCUMSTANCES T HE ADDITION SO MADE MAY KINDLY BE DELETED. 5. FOR THAT IN VIEW OF THE FACTS AND IN THE CIRCUMS TANCES OF THE CASE THE LD. CIT (A) ERRED IN REJECTING THE GROUND NO. 4 OF THE APPEA1 ON THE GROUND THAT SEPARATE APPEA1 IS REQUIRED TO BE MADE AGAINST THE ORDER U/S 251/ 143( 3) DATED 05. 10.2009 IGNORING THE FACT THAT THE AO HIMSELF HAS CONSIDERED THE REVISED TOTA L INCOME AS ASSESSED IN THE ORDER U/S 251/ 143(3) WHILE PASSING AN ORDER U/S 154/ 143(3) DATED 13. 10.2009 AND IN VIEW OF THE FACTS AND IN THE CIRCUMSTANCES THE LD. CIT (A) IS W HOLLY UNJUSTIFIED AND HE MAY BE DIRECTED ACCORDINGLY. 6. FOR THAT IN VIEW OF THE FACTS AND IN THE CIRCUMS TANCES OF THE CASE THE LD. CIT (A) ERRED IN REJECTING THE GROUND NO. 5 AND 6 OF THE APPEA1 O N THE GROUND THAT THE ALLEGED MISTAKE OF SHORT INTEREST U/S 244A WAS NOT QUANTIFIED NOR A NY SUPPORTING WORKING PAPER WAS PROVIDED AND IN VIEW OF THE FACTS AND IN THE CIRCUM STANCES THE ACTION OF LD. CIT (A) WAS WHOLLY UNJUSTIFIED AND ILLEGA1 AND BAD IN LAW AND T HE INTEREST U/S 244A MAY PROPERLY BE GRANTED. 3. BRIEF FACTS LEADING TO THE ABOVE ISSUE ARE THAT THE ORIGINAL ASSESSMENT WAS FRAMED U/S. 143(3) OF THE ACT BY AO FOR THE RELEVANT ASSESSMENT YEAR 2005-06 VIDE HIS ORDER DATED 17.12.2007 THEREBY COMPUTED BOOK PROFIT OF RS.78,46 ,290/-. AGGRIEVED, ASSESSEE PREFERRED APPEAL BEFORE CIT(A) AGAINST CERTAIN SMALL ADDITION S AND DISALLOWANCES. SUBSEQUENTLY, AO ISSUED NOTICE U/S. 154 R.W.S. 155 OF THE ACT DATED 08.10.2009 FOR RECTIFYING THE FOLLOWING MISTAKES: 1) MISTAKE IN DEDUCTION U/S. 80G AS GROSS TOTAL IN COME WAS NEGATIVE. 2) PROVISION FOR DEFERRED TAX AMOUNTING TO RS.34,31 ,000/- WAS NOT ADDED BACK TO BOOK PROFIT U/S. 115JB. IT IS TO BE MENTIONED THAT THE ABOVE SUBJECT MATTER UNDER RECTIFICATION U/S. 154 OF THE ACT IS NOT THE SUBJECT MATTER OF APPEAL BEFORE CIT(A) AGAINST ORIGINAL ASSESSMENT. THE AO NOTED THAT DEDUCTION U/S. 80G OF THE ACT FOR AN AMOUNT OF RS.2 LAKH HAS BEEN ALLOWED WHILE COMPUTING INCOME U/S. 143(3) OF THE ACT EVEN THOUGH ASSESSEE S GROSS TOTAL INCOME IS NEGATIVE. ACCORDING TO HIM, THIS IS A MISTAKE APPARENT FROM RECORD AND HE DISALLOWED THE DEDUCTION ALREADY ALLOWED U/S. 143(3) OF THE ACT. FURTHER, THE AO NOTED THAT WHILE COMPUTING BOOK PROFIT U/S. 115JB OF THE ACT, THE DEFERRED TAX AMOUNTING TO RS.34.31 LAK H HAS NOT BEEN ADDED BACK TO THE BOOK PROFIT AS CLAUSE (H) TO EXPLANATION (1) OF SECTION 115JB O F THE ACT HAS BEEN INTRODUCED BY THE FINANCE 3 ITA NO.1019/K/2010 S. P. JAISWAL ESTATES PVT. LTD. AY: 2005-06 ACT, 2008 WITH RETROSPECTIVE EFFECT FROM 01.04.2001 AND HENCE, ACCORDING TO HIM, THE BOOK PROFIT IS REQUIRED TO BE INCREASED BY THE AMOUNT OF DEFERRED TAX OR PROVISION THEREFOR. ACCORDING TO HIM, THIS IS ALSO A MISTAKE APPARENT F ROM RECORD IN VIEW OF RETROSPECTIVE AMENDMENT AND HE ACCORDINGLY, RECTIFIED THE MISTAKE AND MADE ADDITION TO THE BOOK PROFIT QUA DEFERRED TAX. AGGRIEVED, ASSESSEE PREFERRED APPEAL BEFORE CIT(A). BEFORE CIT(A) ASSESSEE ALSO RAISED SIMILAR GROUNDS AS RAISED BEFORE US AS ABOVE . THE CIT(A) DECIDED THE ISSUE VIDE PARAS 3.2, 3.3, 3.4, 3.4, 3.5 & 3.7, WHICH READ AS UNDER: 3.2. THE GROUND TAKEN BY THE APPELLANT THAT THE MI STAKE IN QUESTION WAS NEITHER SPECIFIC NOR APPARENT FROM THE RECORD WAS DULY CONSIDERED AN D FOUND TO HAVE NO MERIT. THE PRINCIPLE GOVERNING THE APPLICABLITY OF SECTION 15 4 HAS BEEN LAID DOWN IN THE DECISION OF THE SUPREME COURT IN THE CASE OF T. S. BALARAM, INCOME-TAX OFFICER V. VOLKART BROTHERS. THE SUPREME COURT OBSERVED THAT A MISTAKE APPARENT ON THE RECORD MUST BE AN OBVIOUS AND PATENT MISTAKE AND NOT SOMETHING WHI CH HAD TO BE ESTABLISHED BY A LONG- DRAWN PROCESS OF REASONING ON POINTS ON WHICH THERE MIGHT BE CONCEVABLY TWO OPINIONS. A DECISON ON A DEBATABLE POINT OF LAW WA S NOT A MISTAKE APPARENT FROM THE RECORD. HERE REFERENCE MAY ALSO BE MADE TO THE DECI SION OF THE APEX COURT IN THE CASE OF HARBANS LAI MALHOTRA & SONS PRIVATE LTD. V. INCOME- TAX OFFICER, WHERE T WAS HELD THAT A QUESTION WHICH INVOLVED INTERPRETATION OF LAW AND DETERMINATON OF CONTROVERSIAL FACTS COULD NOT BE RECTIFED UNDER SECTION 154 OF THE INC OME-TAX ACT, 1961. 3.3. NOW THE ISSUE TO BE EXAMINED IS, WHETHER THE V IEW TAKEN BY THE ASSESSING OFFICER PREVIOUSLY AND THE PRESENT VIEW ARE TWO CONCEIVABLE DIFFERENT POSSIBLE VIEWS OR WHETHER THE PREVIOUS VIEW OF THE ASSESSING OFFICER WAS A VI EW WHICH WAS NOT POSSIBLE BUT WAS ONLY A MISTAKE. IN THE CASE UNDER CONSIDERATION THE ISSUE OF DISPUTE IS WHETHER THE DEDUCTION UNDER SECTION 80G SHOULD ALLOWED EVEN IF WHEN THE GROSS TOTAL INCOME OF HE ASSESSEE IS NEGATIVE. IN THIS ISSUE THERE IS NO DIS PUTE. THE PROVISION OF THE ACT IS CLEAR AND THERE CANNOT BE TWO POSSIBLE VIEW. HENCE IT IS HELD THAT THE MISTAKE IN QUESTION WAS APPARENT FROM THE RECORD AND THE A.O HAS RIGHTLY DI SALLOWED THE DEDUCTION OF RS. 2,00,000/ WRONGLY ALLOWED UNDER SECTION 80G OF THE ACT ASSESSEE. 3.4. FURTHER THE SECOND RECTIFICATION DONE BY THE A .O IS ON ACCOUNT OF DISALLOWANCE OF THE PROVISION OF THE DEFERRED TAX WHILE CALCULATING THE BOOK PROFIT UNDER SECTION 115JB OF THE ACT. THERE IS NO DISPUTE THAT THE DEFERRED T AX AND THE PROVISION THEREFORE HAS TO BE ADDED BACK AS PER CLAUSE (H) OF THE EXPLANATION 1 O F SECTION 115JB . THE PROVSION OF THE ACT IS CLEAR AND THERE CANNOT BE TWO POSSIBLE VIEW. 3.4. THE SUBMISSION MADE BY THE ASSESSEE THAT SINCE AT THE TIME OF FILING OF THE RETURN AND EVEN AT THE TIME OF PASSING OF THE ASSESSMENT O RDER THE RELEVANT PROVISION WAS NOT THERE , HENCE THERE IS NO MISTAKE APPARENT FROM THE RECORD WHICH CAN BE RECTIFIED WAS DULY CONSIDERED AND FOUND TO HAVE NO MERIT. THE REL EVANT CLAUSE WAS INSERTED BY THE FINANCE ACT 2008 W.R.E.F 2001, HENCE FOR ALL PURPOS ES IT IS DEEMED TO BE EXISTED IN THE YEAR UNDER CONSIDERATION . ACCORDINGLY NON APPLICAT ION OF THE PROVISION WHILE CALCULATING THE BOOK PROFIT WLL BE A MISTAKE APPAR ENT FROM RECORD WHICH CAN BE RECTIFIED UNDER SECTION 154 OF THE ACT. THERE CANNO T BE ANY DISPUTE WITH REGARD TO THE FACT THAT FAILURE TO APPLY A RETROSPECTIVE AMENDMEN T AMOUNTS TO A MISTAKE APPARENT ON THE RECORD. IT IS AMENDED LAW, WHICH MUST BE HELD T O HAVE BEEN IN FORCE AT THE TIME WHEN THE ORDER SOUGHT TO BE RECTIFIED WAS PASSED. ACCORD INGLY IT IS TO BE TAKEN AS IF THE ASSESSMENT ORDER WAS MADE BY OVERLOOKING OR IGNORIN G THE PROVSIONS OF S. 115JB. ACCORDINGLY IT IS HELD THAT THIS AMOUNTS TO A MISTA KE APPARENT ON RECORD. 3.5. FURTHER THE SUBMISSION MADE BY THE APPELLANT T HAT WITH THE PASSING OF THE IMPUGNED ORDER U/S 154 /143(3) DT. 13.10.2009 THERE NOW EXISTS TWO ORDERS ON RECORD I.E (I) THE UNDISPUTED ORDER U/S 251/143(3) DT. 05.10.2 009 AND (II) THE DISPUTED ORDER U/S 154/143(3) DT. 13.10.2009 LOCKED IN APPEAL. SIMULTA NEOUS EXISTENCE OF TWO ORDERS ON THE SAME ISSUE AND FOR THE SAME ASSESSMENT YEAR ARE NOT LEGA1LY POSSIBLE. THEREFORE, THE 4 ITA NO.1019/K/2010 S. P. JAISWAL ESTATES PVT. LTD. AY: 2005-06 LATTER ORDER WAS 154 /143(3) DT. 13.10.2009 BEING TOTALLY IN FRUCTUOUS AND INVALID IN THE EYE OF LAW, PASSED DURING THE EXISTENCE OF AN ORDER ALREADY PASSED EARLIER, IS LIABLE TO BE FULLY QUASHED OR CANCELLED. WAS DULY CONSIDERED AND FOUND TO HAVE NO MERIT. IN THE ASSESSMENT ORDER THE A.O HAS DULY SPECIFIED THAT TH E ORDER DATED 17.12.2007 PASSED UNDER SECTION 143(3) WAS REVISED UNDER SECTION 251 GIVING EFFECT TO C.I.T (A) ORDER. FURTHER THE RECTIFICATION ORDER HAS BEEN SUBSEQUENT LY PASSED TAKING INTO CONSIDERATION THE REVISED TOTAL INCOME U/S 143(3)/251. HENCE THE STAND TAKEN BY THE APPELLANT IS REJECTED. MOREOVER THE MATTER CONSIDERED AND RECTIF IED UNDER SECTION 154 WAS NOT CONSIDERED AND DECIDED IN APPEAL OR REVISION PROCEE DING. 3.7. HENCE TAKNG ALL THE FACTS INTO CONSIDERATION IT IS HELD THAT THERE IS NO INFIRMITY IN THE ORDER UNDER SECTION 154 PASSED BY THE A.O ACCOR DINGLY THE GROUND NO 1 TO 3 TAKEN BY THE APPELLANT IS DISMISSED. SIMILARLY, CIT(A) ALSO NOTED THAT THE ISSUE IN APPE AL BEFORE CIT(A WAS NOT WHAT WAS THE SUBJECT MATTER OF RECTIFICATION U/S. 154 OF THE ACT BEFORE THE AO. HENCE, ACCORDING TO HIM, HE DISMISSED ANOTHER GROUND RAISED BY ASSESSEE I.E. GR OUND NO.4 BEFORE CIT(A). SIMILARLY, BEFORE CIT(A) GROUND NOS. 5 AND 6 TAKEN BY ASSESSEE, WERE DISMISSED AS NO SPECIFIC MISTAKE WAS POINTED OUT BY THE ASSESSEE. AGGRIEVED, ASSESSEE C AME IN APPEAL BEFORE US. 4. WE HAVE HEARD RIVAL SUBMISSIONS AND GONE THROUGH FACTS AND CIRCUMSTANCES OF THE CASE. WE FIND THAT THE ORIGINAL ASSESSMENT WAS FRAMED BY AO U/S. 143(3) OF THE ACT FOR THE RELEVANT AY 2005-06 VIDE ORDER DATED 17.12.2007. IT IS AN A DMITTED FACT THAT THE SUBJECT MATTER IN RECTIFICATION NOTICE DATED 08.10.2009 WAS NEVER THE SUBJECT MATTER OF APPEAL BEFORE CIT(A) IN APPELLATE PROCEEDINGS. AS REGARDS TO THE DISALLOWA NCE OF DEDUCTION U/S. 80G OF THE ACT OF RS.2 LAKH WHICH WAS ALLOWED IN COMPUTATION OF INCOME U/S . 143(3) OF THE ACT EVEN THOUGH THE GROSS TOTAL INCOME WAS NEGATIVE, WE ARE OF THE VIEW THAT THE CIT(A) HAS RIGHTLY HELD THAT THERE IS MISTAKE APPARENT FROM RECORD, AS THE GROSS TOTAL IN COME DISCLOSED BY THE ASSESSEE IS A NEGATIVE INCOME. ASSESSMENT IS TO BE FRAMED BY APPLYING THE PROVISION OF SECTION 115JB OF THE ACT ON THE BOOK PROFIT OF THE ASSESSEE AND NO DEDUCTION U/ S. 80G OF THE ACT CAN BE ALLOWED TO THE ASSESSEE ON NEGATIVE INCOME. EVEN NOW BEFORE US, T HE LD. COUNSEL FOR THE ASSESSEE HAS NOT MADE ANY SUBMISSIONS QUA THIS GROUND AND HENCE, WE ARE OF THE VIEW THAT THE ASSESSEE IS NOT AGGRIEVED BY THE SAME. COMING TO SECOND ISSUE I.E. REVISING THE BOOK PROFIT OR RECTIFYING THE BOOK PROFIT U/S. 115JB OF THE ACT ON THE AMOUNT OF DEFERRED TAX AND THE PROVISION THEREFOR I.E. FOR AN AMOUNT OF RS.34.31 LAKH NOT ADDED BACK IN TH E COMPUTATION OF BOOK PROFIT BY THE ASSESSEE AND ALLOWED BY AO DURING THE COURSE OF ORI GINAL ASSESSMENT AS THERE WAS NO PROVISION FOR MAKING ADDITION OF THIS AMOUNT BEFORE THE RETRO SPECTIVE AMENDMENT BY INTRODUCING CLAUSE (H) TO EXPLANATION (1) OF SECTION 115JB OF THE ACT AS INTRODUCED BY FINANCE ACT, 2008 WITH RETROSPECTIVE EFFECT FROM 01.04.2001 REQUIRING THAT THE BOOK PROFIT AS PER ACCOUNTS IS TO BE INCREASED BY THE AMOUNT OF DEFERRED TAX AND THE PRO VISION THEREFOR. ADMITTEDLY, THE ASSESSEE HAS DEFERRED TAX OR PROVISION THEREFOR FOR AN AMOUN T OF RS.34.31 LAKH. THIS IS NOT DISPUTED. LD. 5 ITA NO.1019/K/2010 S. P. JAISWAL ESTATES PVT. LTD. AY: 2005-06 COUNSEL FOR THE ASSESSEE BEFORE US ONLY ARGUED THAT THE RECTIFICATION U/S. 154 OF THE ACT IS NOT POSSIBLE WHICH CONCERNS A DEBATABLE ISSUE ON WHICH CONCEIVABLY TWO OPINIONS ARE POSSIBLE AND IT IS ALSO SETTLED LAW THAT A MISTAKE WHICH IS NOT OBVIOUS AND PATENT ONE CANNOT BE RECTIFIED. ACCORDING TO LD. COUNSEL FOR THE ASSESSEE, THE ASSE SSMENT WAS FRAMED U/S. 143(3) OF THE ACT VIDE ORDER DATED 17.12.2007 AND AO HAS ALLOWED THE DEDUCTION OF DEFERRED TAX AMOUNTING TO RS.34.31 LAKH AS THERE IS NO PROVISION FOR MAKING A DDITION OF THE SAME OR DISALLOWANCE OF THE SAME. LD. COUNSEL FOR THE ASSESSEE ARGUED THAT RET ROSPECTIVE LAW CANNOT BE APPLIED IN THE CASE OF THE ASSESSEE FOR TWO REASONS I.E. THE ISSUE IS A DEBATABLE ONE AND SECONDLY, THE ADDITIONS MADE U/S. 143(3) OF THE ACT WAS UNDER CHALLENGE BEF ORE CIT(A) AND CIT(A) HAS ALREADY ADJUDICATED THE APPELLATE PROCEEDINGS BEFORE RECTIF ICATION AND SUBSEQUENTLY, AO ALSO GIVEN EFFECT TO THE ORDER U/S. 251/143(3) OF THE ACT DATE D 05.10.2009 BY THE AO. LD. COUNSEL FOR THE ASSESSEE BEFORE US RELIED ON DECISION IN THE CASE O F CIT VS. HINDUSTAN ELECTRO GRAPHITES LTD. (2000) 243 ITR 48 (SC), WHEREIN IT HAS BEEN HELD AS UNDER: ADDITIONAL TAX UNDER S. 143(1A)-RETROSPECTIVE AMEN DMENT OF S. 28 TO INCLUDE CASH COMPENSATORY SUPPORT- ASSESSEE DID NOT INCLUDE THE AMOUNT OF CASH COMPENSATORY SUPPORT IN ITS RETURN FILED ON 29 TH DEC., 1989 AS PER LEGAL POSITION THEN PREVAILING-S AME BECAME TAXABLE RETROSPECTIVELY BY AMENDMENT OF S. 2 8 BY FINANCE ACT, 1990, WHICH COULD NOT HAVE BEEN KNOWN BEFORE THE FINANCE ACT CA ME INTO FORCE-AO INCLUDED THE SAID RECEIPT IN THE INCOME OF ASSESSEE VIDE HIS ORDER UN DER S. 143(1)(A) AND ALSO LEVIED ADDITIONAL TAX-NOT JUSTIFIED-IT IS NOT EVEN A CASE WHERE ASSESSEE DID NOT DISCLOSE THE AMOUNT UNDER SOME MISTAKEN BELIEF-ASSESSEE WAS NOT AT FAULT-WHEN ADDITIONAL TAX HAS IMPRINT OF PENALTY REVENUE CANNOT BE HEARD SAYING T HAT LEVY OF ADDITIONAL TAX IS AUTOMATIC UNDER S. 143(1A)-SEC.143(1A) COULD NOT BE INVOKED TO LEVY ADDITIONAL TAX. HE ALSO RELIED ON THE DECISION IN THE CASE OF CIT V S. GENERAL ELECTRIC CO. OF INDIA LTD. (1978) 112 ITR 246 (CAL), WHEREIN IT HAS BEEN HELD AS UNDE R: BY WAY OF RETROSPECTIVE AMENDMENT OF LAW THOUGH IT COULD BE DEEMED THAT THERE WAS A DEEMED MISTAKE YET THERE WAS NO RECTIFIABLE MISTAKE APPARENT FROM THE RECORD. RECTIFICATION-MISTAKE APPARENT FROM RECORD-AMENDMEN T OF ACT LONG TIME AFTER ORDER SOUGHT TO BE RECTIFIED AND ORDER OF RECTIFICATION-W OULD NOT CONSTITUTE MISTAKE APPARENT- EXPRESSION DEEMED TO BE APPARENT CANNOT BE READ I N S. 35 OF THE IT ACT, 1922- RECTIFICATION NOT PERMISSIBLE. HE FURTHER RELIED ON THE DECISION IN THE CASE OF CI T VS. SWADESHI COMMERCIAL CO. LTD. (1992) 106 CTR (CAL) 122, WHEREIN IT HAS BEEN HELD AS UNDE R: RECTIFICATION-MISTAKE APPARENT-DEDUCTION UNDER S. 80M-RETROSOPECTIVE INSERTION OF S. 80AA BY FINANCE (NO.2) ACT, 1980 (W.E.F. 1 ST APRIL, 1968)-IN VIEW OF SAID AMENDMENT ITO TREATED DEDUCTION ALLOWED UNDER S. 80M AS MISTA KE APPARENT FROM RECORD AND PROCEEDED TO RECTIFY THE SAME ESTIMATING THE EXPENS ES RELATING TO EARNING OF DIVIDEND- NOT JUSTIFIED-EXACT AMOUNT OF EXPENSES RELATING TO EARNING OF DIVIDENDS WAS NOT AVAILABLE IN ORIGINAL ASSESSMENT ORDER-THUS, THERE WAS NO MISTAKE APPARENT FROM RECORD WHICH COULD BE RECTIFIED UNDER S. 154. HE FURTHER RELIED ON THE DECISION IN THE CASE OF CI T VS. MAX INDIA LTD. (2007) 295 ITR 282 (SC), WHEREIN IT HAS BEEN HELD AS UNDER: 6 ITA NO.1019/K/2010 S. P. JAISWAL ESTATES PVT. LTD. AY: 2005-06 REVISION ERRONEOUS AND PREJUDICIAL ORDER-TWO VIE WS POSSIBLE-WHERE TO VIEWS ARE POSSIBLE AND THE ITO HAS TAKEN ONE VIEW WITH WHICH THE CIT DOES NOT AGREE, IT CANNOT BE TREATED AS AN ERRONEOUS ORDER PREJUDICIAL TO THE IN TEREST OF THE REVENUE, UNLESS THE VIEW TAKEN BY THE ITO IS UNSUSTAINABLE IN LAW-WHEN THE C IT PASSED THE IMPUGNED ORDER UNDER S. 263, TWO VIEWS WERE INHERENTLY POSSIBLE ON THE WORD PROFITS OCCURRING IN THE PROVISO TO S. 80HHC(3)-SUBSEQUENT AMENDMENT OF S. 8 0HHC MADE IN THE YEAR 2005, THOUGH RETROSPECTIVE, DID NOT RENDER THE ORDER OF T HE AO ERRONEOUS AND PREJUDICIAL TO THE INTEREST OF THE REVENUE, AND CIT COULD NOT EXER CISE POWERS UNDER S. 263-MALABAR INDUSTRIAL CO. LTD. VS. CIT (2000) 159 CTR (SC) 1; (2000) 243 ITR 83 (SC) FOLLOWED; RUSSEL PROPERTIES (P) LTD. VS. A. CHOWDHURY, ADDL. CIT (1977) 109 ITR 229 (CAL) IMPLIEDLY APPROVED; CIT VS. MAX INDIA LTD. (2004) 1 91 CTR (P&H) 397 AFFIRMED. HE FURTHER RELIED ON THE DECISION IN THE CASE OF SH RIRAM CHITS (BANGALORE) LTD. VS. JCIT (2010) 325 ITR 219 (KAR), WHEREIN IT HAS BEEN HELD AS UNDE R: RECTIFICATION-MISTAKE APPARENT-RETROSPECTIVE AMEND MENT OF LAW-ASSESSMENT BASED ON THE SUPREME COURT DECISION CANNOT BE RECTIFIED ON S UBSEQUENT RETROSPECTIVE AMENDMENT OF LAW-ACCORDING TO THE AO, ASSESSMENT WAS COMPLETE D UNDER S. 143(3) AND HE HAD NOT CHARGED THE INTEREST UNDER S. 234B RELYING UPON THE JUDGMENT OF THE APEX COURT IN CIT VS. RANCHI CLUB LTD., (2000) 164 CTR (SC) 200; (200 1) 247 ITR 209 (SC)-ORDER OF RECTIFICATION PASSED UNDER S. 154 LEVYING INTEREST FOR THE FIRST TIME UNDER S. 234B IN VIEW OF RETROSPECTIVE AMENDMENT OF S. 234B WAS NOT VALID . 5. ON THE OTHER HAND, THE LD. SR. DR HEAVILY RELIED ON THE RECTIFICATION ORDER, THE ORDER OF CIT(A) AND THE RETROSPECTIVE AMENDMENT CARRIED OUT BY THE LEGISLATURE BY THE FINANCE ACT, 2008 BY INTRODUCING CLAUSE (H) TO EXPLANATION (1) O F SECTION 115JB IN THE ACT WITH RETROSPECTIVE EFFECT FROM 01.04.2001. WE FIND THAT LEGISLATURE HAS INTRODUCED CLAUSE (H) TO EXPLANATION (I) OF SECTION 115JB OF THE ACT AS UNDE R: THE AMOUNT OF DEFERRED TAX AND THE PROVISION THEREF OR, IF ANY AMOUNT REFERRED TO IN CLAUSES ( A ) TO ( H ) IS DEBITED TO THE PROFIT AND LOSS ACCOUNT, AND AS REDUCED BY BY THE FINANCE ACT 2008 WR.E.F. 01.04.2001 IT MEANS THAT THE DEFERRED TAX OR PROVISION THEREFOR, THE AMOUNT FOR WHICH PROVISION WAS MADE IS TO BE AD DED TO THE BOOK PROFIT WHILE COMPUTING THE BOOK PROFIT UNDER THE PROVISIONS OF SECTION 115JB O F THE ACT. WE ARE OF THE VIEW THAT THE EFFECT OF RETROSPECTIVE LEGISLATIVE AMENDMENT IS THAT THE PROVISIONS AS AMENDED SHALL, FOR ALL LEGAL PURPOSES, BE DEEMED TO HAVE BEEN INCLUDED IN THE ST ATEMENT FROM THE DATE ON WHICH THE AMENDMENT CAME INTO FORCE. ALL ORDERS RELATING TO PERIODS SUBSEQUENT TO THE DATE OF RETROSPECTIVE AMENDMENT MUST BE IN CONSONANCE WITH THE AMENDED PROVISIONS. FOR FINDING OUT WHETHER THERE IS A MISTAKE APPARENT ON THE RECORD, THE AUTHORITY IS TO LOOK TO THE AMENDED LAW AND NOT TO THE LAW THAT WAS IN FORCE AT THE TIME OF ORIGINAL ORDER WAS MADE. IF AN ORDER IS PLAINLY AND OBVIOUSLY IN CONSISTENT WITH THE SPECIF IC AND CLEAR PROVISION, AS AMENDED RETROSPECTIVELY, THERE IS A MISTAKE APPARENT FROM T HE RECORD, WHICH CAN BE RECTIFIED U/S. 154 OF THE ACT. IN SUCH CIRCUMSTANCES, WE ARE OF THE VIEW THAT THE AO HAS RIGHTLY RECTIFIED THE MISTAKE 7 ITA NO.1019/K/2010 S. P. JAISWAL ESTATES PVT. LTD. AY: 2005-06 COMPUTING THE BOOK PROFIT BY INCLUDING THE AMOUNT O F DEFERRED TAX AND THE PROVISION THEREOF. FURTHERMORE, THERE IS NO QUESTION OF ANY MERGER OF ORDER AS THE SUBJECT MATTER BEFORE CIT(A) WAS ALTOGETHER DIFFERENT FROM THE SUBJECT MATTER OF RECTIFICATION U/S. 154 OF THE ACT BEFORE THE A.O. IN VIEW OF THE ABOVE, WE ARE OF THE VIEW THAT THE LOWER AUTHORITIES HAVE RIGHTLY DECIDED THE ISSUE AND WE CONFIRM THE SAME. ALL THE ISSUES O F ASSESSEES APPEAL ARE DISMISSED. 6. IN THE RESULT, APPEAL OF ASSESSEE IS DISMISSED. 7. ORDER PRONOUNCED IN THE OPEN COURT. SD/- SD/- . . . . . . . . , ! ! ! ! '! '! '! '! , (P. K. BANSAL) (MAHAVIR SINGH) ACCOUNTANT MEMBER JUDICIAL MEMBER ( . . . .) )) ) DATED : 21 ST MARCH, 2013 /0 '$12 '3 JD.(SR.P.S.) 8 ITA NO.1019/K/2010 S. P. JAISWAL ESTATES PVT. LTD. AY: 2005-06 - 4 +''5 65&7- COPY OF THE ORDER FORWARDED TO: 1 . )* / APPELLANT S. P. JAISWAL ESTATES PVT. LTD., C/O SA LARPURIA JAJODIA & CO. 7, C. R. AVENUE, KOLKATA-700 072. 2 +,)* / RESPONDENT ACIT, CC-IV, KOLKATA. 3 . '-$ ( )/ THE CIT(A), KOLKATA 4. 5. '-$ / CIT KOLKATA 5 <'= +'$ / DR, KOLKATA BENCHES, KOLKATA ,5 +'/ TRUE COPY, -$>/ BY ORDER, ! 2 /ASSTT. REGISTRAR .