DCIT, Ernakulam V. M/s MFAR HOTELS Ltd, Ernakulam

ITA 75/COCH/2010

• Counselvise Citation: [2011] 140 COUNSELVISE.COM (IT) 52209 (ITAT-COCHIN)
• Duration Of Justice: 1 year(s) 6 month(s) 11 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 17-08-2011
• Appeal Filed By: Department
• Bench Allotted: DB
• Assessment Year: 2005-2006
• Appeal Filed On: 05-02-2010
• Court: TRIBUNAL
• Keywords: Revised return
• Section: 143(3); 14A; 115JB

Judgement Text

I.T.A. NO. 75/COCH/2010 1 IN THE INCOME TAX APPELLAT E TRIBUNAL COCHIN BEN CH, COCHIN BEFORE S/SHRI N.VIJAYAKUMARAN, JM AND SANJAY AR ORA, AM I.T.A. NO.75 /COCH/2010 ASSESSMENT YEARS:2005-06 THE DEPUTY COMMISSIONER OF INCOME TAX, CIRCLE-1(3), ERNAKULAM VS. M FAR HOTELS LTD., NH 47, BYE PASS KUNDANNUR JN. MARADU, KOCHI - 682 304 [PAN: AABCM 9267F]. (REVENUE- APPELLANT) (ASSESSEE-RESPONDENT) REVENUE BY MS. S. VIJAYAPRABHA, DR ASSESSEE BY SHRI K.T.MOHANAN, A.R. DATE OF HEARING 25/07/2011 DATE OF PRONOUNCEMENT 17/08/2011. O R D E R PER SANJAY ARORA, AM: THIS IS AN APPEAL BY THE REVENUE, ARISING OUT OF O RDER BY THE COMMISSIONER OF INCOME-TAX (APPEALS)-II, KOCHI (CIT(A) FOR SHORT) DATED 30.11.2009, AND THE ASSESSMENT YEAR (A.Y.) UNDER REFERENCE IS 2005-06. 2. THE BRIEF FACTS OF THE CASE ARE THAT THE ASSESSE E FILED ITS RETURN OF INCOME FOR THE YEAR ON 27.10.2005 DECLARING A TOTAL INCOME AT ` NIL, I.E., UNDER THE NORMAL PROVISIONS OF THE INCOME-TAX ACT, 1961 ('THE ACT' HEREINAFTER), A ND AT ` 255.78 LAKHS U/S. 115JB OF THE ACT. THE RETURN WAS PROCESSED U/S. 143(1) ON 25.5.2 006 AT THE RETURNED INCOME AND INTIMATION ISSUED. SUBSEQUENTLY (I.E., ON 28.3.2007 ), THE ASSESSEE MOVED AN APPLICATION U/S. 154 OF THE ACT, STATING THAT THE PROFIT AND LO SS ACCOUNT ACCOMPANYING ITS RETURN BORE AN INCOME OF ` 80,82,682/- IN RESPECT OF WAIVER OF INTEREST ON LOA NS. THE INTEREST, BEING I.T.A. NO. 75/COCH/2010 2 ON AN INTER-CORPORATE LOAN AVAILED BY THE COMPANY F OR THE PURCHASE OF SHARES, STOOD EXPENSED AND CLAIMED FOR THE PREVIOUS YEARS RELEVAN T TO AY 2003-04 AND AY 2004-05. THE SAME, THEREFORE, ON BEING WAIVED, STOOD CREDITE D TO THE PROFIT AND LOSS ACCOUNT FOR THE CURRENT YEAR AND OFFERED AS INCOME. HOWEVER, WHILE COMPLETING THE ASSESSMENT FOR A.Y. 2004-05, THE ASSESSING OFFICER (AO) HAD DISALLOWED ITS CLAIM OF INTEREST ON INTER- CORPORATE LOAN FOR ` 54,40,440/-, U/S. 14A OF THE ACT. THE SAME FORMS A PART OF THE TOTAL AMOUNT OF ` 80.83 LAKHS CREDITED TO THE PROFIT AND LOSS ACCOUNT FOR THE YEAR. AS SUCH, BRINGING THE SAME TO TAX FOR THE YEAR WOULD AMOUNT TO TAXING THE SAME INCOME TWICE, I.E., BOTH FOR A.Y. 2004-05 AND AGAIN FOR AY 2005-06, AND PARTICULARLY CONSIDERING THAT IT HAD NOT FILED ANY APPEAL AGAINST ITS ASSESSMENT FOR A.Y . 2004-05. THE AO WAS ACCORDINGLY PETITIONED TO RECTIFY THE SAME, BEING A MISTAKE APP ARENT FROM RECORD. THE ASSESSING OFFICER, HOWEVER, FOUND THAT THERE WAS NO MISTAKE A PPARENT FROM THE RECORD AFTER VERIFICATION OF THE RECORDS AND, ACCORDINGLY, REJEC TED THE ASSESSEES APPLICATION VIDE ORDER DATED 23/5/2007. THE ASSESSEE, HOWEVER, FOUND FAVOU R IN FIRST APPEAL. THE ORDER U/S. 143(3) FOR A.Y. 2004-05 FORMED PART OF THE `RECORD , WHICH CANNOT BE RESTRICTED TO MEAN THE RECORD FOR THE RELEVANT YEAR ONLY. THE AOS REJ ECTION WOULD TANTAMOUNT TO PRESERVING A `MISTAKE, SO THAT THE PURPOSE AND OBJECT OF RECT IFICATION OF A MISTAKE WOULD BE ILL- SERVED IF THE POWER IS NOT EXERCISED BY RESTRICTING ITS PURVIEW, I.E., WITH REFERENCE TO THE `RECORD THAT COULD BE REFERRED TO FOR THE PURPOSE. THE RECORDS FOR BOTH, THE CURRENT YEAR, I.E., A.Y. 2005-06, AS WELL AS FOR AY 2004-05, COUL D BE VISITED OR LOOKED INTO FOR THE PURPOSE. HE, THEREFORE, ALLOWED THE ASSESSEES APP EAL. AGGRIEVED, THE REVENUE IS IN APPEAL. 3. BEFORE US, LIKE CONTENTIONS STOOD RAISED BY EITH ER SIDE. WHAT IS THERE TO SHOW, IT WAS URGED BY THE LD. DR, THAT THE CREDIT OF ` 80.83 LAKHS, REVERSAL OF WHICH TO THE EXTENT OF ` 54.50 LAKHS IS BEING CLAIMED BY THE ASSESSEE, INCLU DES THE SAID SUM BROUGHT TO TAX IN AN EARLIER YEAR (AY 2004-05). WHEN DID THE WAIVER TAKE PLACE IS NOT CLEAR OR APPARENT FROM THE RECORD, SO THAT IT MAY WELL BE THAT THE SAME WA S ONLY AFTER THE CLOSE OF THE RELEVANT FINANCIAL YEAR; THE ASSESSEE FILING ITS RETURN OF I NCOME IN OCTOBER, 2005, SO THAT THE SAID I.T.A. NO. 75/COCH/2010 3 WAIVER MAY ITSELF BE NOT ASSESSABLE AS INCOME FOR T HE CURRENT YEAR, BUT FOR THE FOLLOWING YEAR. ALSO, THERE IS NOTHING ON RECORD TO SHOW THAT THE ASSESSEE HAS NOT APPEALED AGAINST ITS ASSESSMENT FOR A.Y. 2004-05. AT ANY RATE, THE M ATTER REQUIRES VERIFICATION, AND IT CANNOT BE, ON THE BASIS OF RECORD AVAILABLE WITH TH E AO, SAID THAT THERE WAS A MISTAKE APPARENT FROM RECORD, SO THAT HIS ORDER U/S. 154 DA TED 23.5.2007, REJECTING THE ASSESSEES APPLICATION THERE-UNDER, MERITS BEING UPHELD. THE LD. AR, ON THE OTHER HAND, WAS EQ UALLY VEHEMENT IN ARGUING THE ASSESSEES CASE. IT IS TRITE THAT THE RECORD, FOR THE PURPOSE OF RECTIFICATION U/S. 154, DOES NOT MEAN ONLY AN ORDER OF ASSESSMENT, BUT COMPRISES THAT QUA ALL PROCEEDINGS ON WHICH THE SAME IS PASSED. THE MATTER IS WELL-SETTLED, AND IT IS OPEN FOR THE AO TO CONSULT THE RECORDS FOR THE PRECEDING (OR OTHER) ASSESSMENT YEARS AS WELL FOR T HE PURPOSE OF RECTIFYING A MISTAKE U/S. 154. RELIANCE FOR THE PURPOSE WAS MADE BY HIM TO T HE DECISION IN THE CASE OF MAHARANA MILLS (P) LTD . VS. ITO (1959) 36 ITR 350 (SC); UPASANA HOSPITAL & NURSING HOME VS. CIT , 253 ITR 507(KER.), AND CIT VS. M.R.M. PLANTATIONS (P) LTD. , 240 ITR 660 (MAD.). 4. WE HAVE HEARD THE PARTIES AND PERUSED THE MATERI AL ON RECORD. 4.1 WITHOUT DOUBT, AS AMPLY CLARIFIED BY THE H IGHER COURTS OF LAW, INCLUDING THE APEX COURT AND THE JURISDICTIONAL HIGH COURT, `RECORD F OR THE PURPOSES OF RECTIFICATION U/S. 154 CANNOT BE RESTRICTED TO MEAN THE RECORD FOR THE REL EVANT YEAR ONLY; THE PURPOSE FOR A RECTIFICATION BEING THAT NO PREJUDICE IS CAUSED TO THE ASSESSEE ON ACCOUNT OF ANY MISTAKE COMMITTED BY ANY AUTHORITY INVOLVED IN THE ADMINIST RATION OF THE ACT OR IN ANY PROCEEDINGS ARISING THERE-FROM. THE ONLY TWO QUALIF ICATIONS ARE THAT THERE MUST BE A `MISTAKE, WHICH COULD BE EITHER OF FACT OR OF LAW AND, TWO, THE SAME MUST BE APPARENT FROM THE RECORD. AS LONG AS IT IS APPARENT THERE-FR OM, EVEN VISITING OR CONSULTING THE RECORDS QUA PROCEEDINGS FOR ANOTHER YEAR IS NO BAR. 4.2 SO HOWEVER, THE QUESTION IN OUR VIEW, TO START WITH, IS NOT WHETHER AN EARLIER COMMUNICATION BY THE ASSESSEE TO THE AO, I.E., DURI NG THE COURSE OF THE ASSESSMENT PROCEEDINGS FOR A.Y. 2004-05, COULD BE CONSIDERED A S A PART OF THE RECORD, SO AS TO BE I.T.A. NO. 75/COCH/2010 4 TAKEN INTO ACCOUNT FOR THE PURPOSE OF CONSIDERING T HE RECTIFICATION APPLICATION ON MERITS. THE FIRST ISSUE, IN OUR VIEW, LIES IN THE SEVERELY LIMITED SCOPE OF THE PROCESSING U/S. 143(1) OF THE ACT. SEC. 143(1) STANDS MATERIALLY AMENDED B Y THE FINANCE ACT, 1999, W.E.F. 1.6.1999 AND BY THE FINANCE ACT, 2001 W.E.F. 1.6.20 01. AS IT STOOD AT THE RELEVANT TIME, THE PROVISION READS AS UNDER:- ASSESSMENT 143(1) WHERE A RETURN HAS BEEN MADE U/S. 139, OR IN RESPONSE TO A NOTICE UNDER SUB-SECTION (1) OF SECTION 142, (I) IF ANY TAX OR INTEREST IS FOUND DUE ON THE BAS IS OF SUCH RETURN, AFTER ADJUSTMENT OF ANY TAX DEDUCTED AT SOURCE, ANY ADVANCE TAX PAID, ANY T AX PAID ON SELF-ASSESSMENT AND ANY AMOUNT PAID OTHERWISE BY WAY OF TAX OR INTEREST, TH EN, WITHOUT PREJUDICE TO THE PROVISIONS OF SUB-SECTION (2), AN INTIMATION SHALL BE SENT TO THE ASSESSEE SPECIFYING THE SUM SO PAYABLE, AND SUCH INTIMATION SHALL BE DEEMED TO BE A NOTICE OF DEMAND ISSUED UNDER SECTION 156 AND ALL THE PROVISIONS OF THIS A CT SHALL APPLY ACCORDINGLY; AND (II) IF ANY REFUND IS DUE ON THE BASIS OF SUCH RET URN, IT SHALL BE GRANTED TO THE ASSESSEE AND AN INTIMATION TO THIS EFFECT SHALL BE SENT TO T HE ASSESSEE: PROVIDED THAT EXCEPT AS OTHERWISE PROVIDED IN THE SUB-SECTI ON, THE ACKNOWLEDGMENT OF THE RETURN SHALL BE DEEMED TO BE INTIMATION UNDER THIS SUB- SECTION WHERE EITHER NO SUM IS PAYABLE BY THE ASSESSEE OR NO REFUND IS DUE TO HIM: PROVIDED FURTHER THAT NO INTIMATION UNDER THE SUB-SECTION SHALL BE SENT AFTER THE EXPIRY OF ONE YEAR FROM THE END OF THE FINANCIAL YEAR IN WHIC H THE RETURN IS MADE: PROVIDED ALSO THAT WHERE THE RETURN MADE IS IN RESPECT OF T HE INCOME FIRST ASSESSABLE IN THE ASSESSMENT YEAR COMMENCING ON THE 1 ST DAY OF APRIL, 1999, SUCH INTIMATION MAY BE SENT AT ANY TIME UP TO THE 31 ST DAY OF MARCH, 2002. THE EXTANT PROVISION, THUS, DISPENSES WITH THE CONCEPT AND PRACTICE OF A PRIMA FACIE ADJUSTMENT TO THE ASSESSEES RETURN. AN INTIMATION U/S. 143(1), ISSUED ON OR AFTER 1/6/1999, WOULD ENTITLE THE ASSESSING AUTHORITY TO EITHER RAISE A DEMAND OR GRANT A REFUND STRICTLY ON THE BASIS OF THE RETURN FURNISHED BY TH E ASSESSEE. WHERE THE WORKING OF THE TAX I.T.A. NO. 75/COCH/2010 5 AND CONCOMITANT INTEREST THEREON, IF ANY, AS COMPUT ED BY THE ASSESSEE, MATCHES WITH THAT BY THE REVENUE, I.E., AS PER THE RETURN FURNISHED, NO ORDER/INTIMATION IS TO BE ISSUED, AND THE ACKNOWLEDGEMENT OF THE RECEIPT OF THE RETURN WO ULD ITSELF SERVE THE PURPOSE OF AN INTIMATION, SIGNIFYING THE ACCEPTANCE OF THE RETURN AS SUCH. THAT IS, THERE IS NO SCOPE FOR ANY PRIMA FACIE ADJUSTMENT - THE AMBIT OF WHICH IS AT PAR WITH THA T U/S. 154 - WITH EFFECT FROM 1.6.1999. WHERE, THEN, ONE MAY ASK, IS THE SCOPE FOR EFFECTIN G ANY CHANGE/S TO THE RETURNED INCOME, IRRESPECTIVE OF THE VALIDITY OR OT HERWISE OF THE ASSESSEES CLAIMS MADE PER A LETTER TO THE AO SUBSEQUENT TO THE PROCESSING , WHICH RATHER IS IMPERMISSIBLE EVEN IF THE SAID COMMUNICATION/APPLICATION WAS TO BE MOVED PRIOR THERETO ? AND IF THAT BE SO, HOW COULD IT BE SAID THAT THERE HAS OCCURRED, OR TH E AO HAS COMMITTED, A MISTAKE, IN ISSUING THE IMPUGNED INTIMATION DATED 25/5/2006. TH E ASSESSEE DID NOT FILE A REVISED RETURN, AND WHICH IT COULD AT ANY TIME UP TO 31/3/2 007. WHEN THE INTIMATION IS TO BE BASED ONLY ON THE RETURN FURNISHED, HOW COULD, ONE MAY ASK, IT BE SAID TO BEAR A MISTAKE, WHERE CONSISTENT THEREWITH . THE QUESTION OF THE VERIFICATION OF THE ASSESSEE S CLAIM, OR OF IT BEING VALID IN TERMS OF BEING APPARENT FROM THE RECORD, I.E., THE QUESTIONS OR THE ISSUES SOUGHT TO BE RAISED BY THE OPPOSING PARTIES, THUS, DO NOT ARISE FOR CONSIDERATION AT ALL. 4.3 OF COURSE, THE SAME (INTIMATION) IS LIABLE FOR RECTIFICATION U/S. 154(1) OF THE ACT. BUT WHEN THE ADJUSTMENT SOUGHT FOR IS NOT PERMISSIB LE, FALLING OUTSIDE THE PURVIEW OF SEC. 143(1), HOW COULD NOT EFFECTING THE SAME, MERITS AP ART, CONSTITUTE A `MISTAKE. WHAT CANNOT BE DONE DIRECTLY COULD NOT POSSIBLY BE DONE INDIRECTLY, I.E., BY RECOURSE TO S. 154. IT IS ONLY WHAT OUGHT TO BE DONE (OR NOT DONE), I.E ., IN THE FACTS OF THE CASE AND GIVEN THE LAW IN THE MATTER, THAT NOT SO DOING (OR ITS DOING) , AS THE CASE MAY BE, BE TREATED AS A `MISTAKE, AND RECTIFIED U/S. 154. IN OTHER WORDS, THE SCOPE OF SEC. 154, WHICH IS LIMITED TO CLEAR MISTAKES OF FACT OR OF LAW AS APPARENT FROM T HE RECORD, CANNOT IN ANY CASE EXPAND THE SCOPE OF THE ORIGINAL ACTION, WHEREBY OR WHEREI N A MISTAKE HAS OCCURRED. 4.4 IN FACT, DUE TO THE SEVERELY LIMITED SCOPE OF PROCESSING A RETURN OF INCOME U/S. 143(1), I.E., SINCE 1/6/1999 AND, FURTHER, SINCE 1/ 6/2001, THE SAME HAS SINCE BEEN I.T.A. NO. 75/COCH/2010 6 INSTITUTIONALIZED BY THE DEPARTMENT THROUGH A COMPU TERISED PROGRAMME. IN FACT, THE LAW AS IT STANDS, EVEN AN INCORRECT CLAIM, I.E., AS MAY BE GATHERED OR INFERABLE FROM THE RECORD, CAN NOT BE ADDRESSED BY THE AO U/S. 143(1) OF THE A CT. THE PROVISION AS AMENDED BY THE FINANCE ACT, 2008 W.E.F. 1.4.2008, BRINGS IN THE CO NCEPT OF `ADJUSTMENT OF AN INCORRECT CLAIM, WHERE THE SAME IS APPARENT FROM ANY INFORMA TION IN THE RETURN. THE SAME, THUS, CONTEMPLATES SUCH INCONSISTENCIES, INCLUDING THEIR ADJUSTMENT/CORRECTION UNDER PROCESSING; SO THAT THERE IS AN EXPANSION IN ITS SC OPE TO SOME EXTENT. HOWEVER, AS AFORE- STATED, THE SAME IS ONLY PER A LATER AMENDMENT AND, AGAIN, IS RESTRICTED TO CORRECTING INCONSISTENCIES IN THE RETURN ITSELF, WHILE IN THE PRESENT CASE THE INCONSISTENCY IS ADMITTEDLY ONLY ON THE BASIS OF A ONE LINE WRITTEN COMMUNICATION DATED 25.9.2006 BY THE ASSESSEE TO THE AO IN THE COURSE OF THE ASSESSMENT PROCEEDINGS FOR A.Y. 2004-05, WHERE, VIDE PARA 6 THEREOF, IT, IN RELATION TO THE PROPOSE D DISALLOWANCE OF INTEREST U/S. 14A FOR THAT YEAR, SEEKS TO BRING TO THE NOTICE OF THE ASSE SSING AUTHORITY THAT THE INTEREST UNDER REFERENCE HAS BEEN WAIVED AND ASSESSED AS INCOME FO R THE FINANCIAL YEAR 2004-05 (A.Y. 2005-06), IMPLYING THAT THE PROPOSED DISALLOWANCE F OR THAT YEAR BE THEREFORE DROPPED. THAT IS, THE PROPOSED ADJUSTMENT OR RECTIFICATION I N THE INSTANT CASE IS, ASSUMING IT TO QUALIFY AS ADMISSIBLE, IS NOT BASED ON AN INTERNAL INCONSISTENCY IN THE RETURN AS SOUGHT TO BE BROUGHT WITHIN THE SCOPE OF THE PERMISSIBLE A DJUSTMENTS (TO THE RETURN) W.E.F. 1/4/2008 - BUT ONE DISCERNABLE WITH REFERENCE TO TH E RECORD FOR ANOTHER ASSESSMENT YEAR. 4.5 ALSO, CONTINUING FURTHER, THE INTIMATION S TOOD ISSUED ON 25/5/2006, WHILE THE SAID COMMUNICATION (BY THE ASSESSEE) IS OF A LATER DATE. HOW CAN, IT MAY BE ASKED, A MISTAKE OF FACT BE SAID TO HAVE OCCURRED WHEN THE INCONSISTENC Y, WITH REFERENCE TO WHICH THE MISTAKE IS IMPUTED, ITSELF ADMITTEDLY ARISES ONLY SUBSEQUEN T THERETO ? IN FACT, EVEN THE DATE OF THE LETTER (ASSUMING ITS COMMUNICATION ON THE SAME DAY) ALSO CANNOT BE CONSIDERED AS FINAL, I.E., FOR THE PURPOSE OF INFERRING THE `MISTAKE, A S IT COULD WELL HAVE BEEN THAT THE AO HAD ACCEDED TO THE ASSESSEES REQUEST, I.E., WHILE FRAM ING THE ASSESSMENT FOR AY 2004-05, AND IN WHICH CASE THE SAID MISTAKE WOULD ADMITTEDLY NOT ARISE. COULD A SUBSEQUENT ACTION BY THE AO FOR ANOTHER YEAR, TAKEN ON MERITS, LEAD TO T HE INFERENCE OF A `MISTAKE WITHIN THE I.T.A. NO. 75/COCH/2010 7 CONTEMPLATION OF THE SAID TERM U/S. 154 ? WE THINK NOT. FURTHER ON, IT MAY WELL BE THAT THE ASSESSEE HAD OPTED TO APPEAL AGAINST THE AOS DECIS ION IN NOT ACCEDING TO ITS `REQUEST; IT RATHER ITSELF UNDERSCORING THE FACT OF NON PREFEREN CE OF AN APPEAL IN ADVANCING ITS CASE. THE INFERENCE OF A MISTAKE IS, THUS, BY ITS OWN ADM ISSION, PUSHED FORWARD IN TIME BY A FURTHER PERIOD OF TILL THE EXPIRY OF THIRTY DAYS AF TER THE COMMUNICATION OF THE ASSESSMENT ORDER FOR AY 2004-05, I.E., THE TIME AVAILABLE FOR FILING AN APPEAL THERE-AGAINST. THIS IS AS, ADMITTEDLY, FILING OF AN APPEAL BY THE ASSESSEE WOU LD OPERATE TO REMOVE THE ISSUE FROM THE AMBIT OF A RECTIFIABLE MISTAKE U/S. 154. APART FROM BEING A MATTER SUBSEQUENT, I.E., THE TIME FACTOR, THE INFERENCE OF A MISTAKE THUS BECOME S A FUNCTION OF THE MERITS OF A DECISION, TAKEN INDEPENDENTLY, BY THE AO IN RESPECT OF THE ASSESSMENT FOR ANOTHER YEAR. AND WHICH, BY DEFINITION, CAN NOT BE. 4.6 LASTLY, WE MAY CLARIFY THAT WE ARE AWARE T HAT THE BASIS OF OUR DECISION, I.E., IN PART, IS NOT IN ALIGNMENT WITH THE CASE OF EITHER PARTY B EFORE US. HOWEVER, THE ISSUE TO THAT EXTENT IS, FIRSTLY, LEGAL, I.E., WHETHER, GIVEN THE LIMITED SCOPE OF AN INTIMATION, THE SAME, AS EFFECTED, BEING UNDISPUTEDLY IN ACCORDANCE WITH THE RETURN AS FILED, CAN IT IN LAW BE SAID TO BEAR A MISTAKE? IT IS TRITE LAW THAT IT IS THE CORR ECT LEGAL POSITION THAT IS RELEVANT, AND NOT THE VIEW THAT THE PARTIES MAY TAKE OF THEIR RIGHTS IN THE MATTER [ CIT V. C. PARAKH & CO. (INDIA) LTD . (1956) 29 ITR 661 (SC)]. THE SAME, I.E. , THE SA ID LEGAL ISSUE, COULD THUS VALIDLY FORM THE BASIS OF OUR DECISION. THE SECOND BASIS OF OUR DECISION (REFER PARA 4.5 ), WHICH IS WITHOUT PREJUDICE TO AND INDEPENDENT OF TH E FIRST, VIEWS THE MATTER FROM A DIFFERENT STAND POINT, I.E., BY ASSUMING THAT THE R ECTIFICATION AS BEING PRESSED COULD IN LAW BE GIVEN EFFECT TO. PUT DIFFERENTLY, THAT IT (RECTI FICATION) IS WITHIN THE PURVIEW OF AN ADJUSTMENT (TO THE RETURNED INCOME) THAT COULD BE E FFECTED PER AN INTIMATION U/S. 143(1) AND, THUS, EFFECTED U/S. 154, WHERE VALIDLY OMITTED TO HAVE BEEN SO. AND EXAMINES THE QUESTION OF WHETHER THE `MISTAKE PETITIONED FOR BE ING RECTIFIED FALLS WITHIN THE SCOPE OF A MISTAKE AND, FURTHER, EVEN IF SO, IS WITH REFERENCE TO MATERIALS WHICH COULD BE CONSIDERED AS PART OF THE RECORD. THE SAME CLEARLY AGREES WITH THE REVENUES CASE. I.T.A. NO. 75/COCH/2010 8 5. IN VIEW OF THE FOREGOING, WE CONSIDER THE REVENUE AS JUSTIFIED IN HOLDING THAT THERE IS NO MISTAKE APPARENT FROM THE RECORD, RECTIFIABLE U/S. 154, IN THE PROCESSING OF THE ASSESSEES RETURN FOR THE CURRENT YEAR, WHICH IS ST RICTLY IN CONFORMITY WITH THE RELEVANT PROVISIONS OF LAW. THE LD. CIT(A) HAS IN DECIDING T HE MATTER OMITTED TO TAKE NOTE OF THE AMENDED LAW (S. 143(1)), AS WELL AS TO APPRECIATE T HE ESSENTIAL DIFFERENCE THAT OBTAINS BETWEEN A MISTAKE APPARENT FROM THE RECORD AND THAT ASCERTAINABLE OR INFERABLE ON ITS REVIEW. WE DECIDE ACCORDINGLY. THE LAW, WE MAY ADD, IS NOT WITHOUT REMEDY THOUGH AND, AS AFORE-NOTED, THE MOST APPARENT COURSE FOR THE AS SESSEE; IT ADMITTING TO THE DISALLOWANCE FOR AY 2004-05 AS BEING VALID IN LAW, WAS TO FILE A REVISED RETURN. 6. IN THE RESULT, THE REVENUES APPEAL IS ALLOWED. SD/- SD/- (N.VIJAYAKUMARAN) (SANJAY ARORA) JUDICIAL MEMBER ACCOUNTANT MEMBER PLACE: ERNAKULAM DATED: 17TH AUGUST, 2011 GJ COPY TO: 1. M/S. M FAR HOTELS LTD., NH 47, BYE PASS KUNDANNU R JN. MARADU, KOCHI - 682 304 2. THE DEPUTY COMMISSIONER OF INCOME TAX, CIRCLE-1( 3), ERNAKULAM. 3. THE COMMISSIONER OF INCOME-TAX (APPEALS)-II, KOC HI. 4. THE COMMISSIONER OF INCOME-TAX, KOCHI. 5. D.R, I.T.A.T., COCHIN BENCH, COCHIN. 6. GUARD FILE .