M/S Calico Trends, Kanpur vs Assessee

M/s Calico Trends, Vs. Dy. C.I.T.-1, 60A, 150 Ft. Road, Jajmau, Kanpur. Kanpur. PAN:AABFC1787H (Applicant) (Respondent) Applicant by Shri Rakesh Garg, Advocate Respondent by Shri Rajnish Yadav, D. R. Date of hearing 28/11/2014 Date of pronouncement 07/01/2015

ORDER PER A. K. GARODIA, A.M.

This Misc. Application is filed by the assessee running into 15 pages. The main contention raised in this Misc. Application is that in the facts of the present case, the Assessing Officer could have invoked the provisions of section 154 to rectify the assessment by making disallowance of the deduction claimed by the assessee u/s 80IB and therefore, the action of the Assessing Officer in reopening the assessment u/s 147 of the Act is not valid. In support of this contention, reliance was placed on a judgment of Hon'ble Bombay High Court rendered in the case of HINDUSTAN UNILEVER LTD. v. DEPUTY COMMISSIONER OF INCOME TAX & ANR as reported in [2010] 38 DTR 91 (Bom).

2. Learned D.R. of the Revenue submitted that there is no mistake in the impugned Tribunal order.

3. We have considered the rival submissions. We find that the issue in dispute before the Tribunal was whether the reopening was valid. It is noted by the Tribunal that the Assessing Officer recorded the reasons for reopening and the Tribunal has reproduced the reasons for reopening on page No. 2 & 3 of its order wherein it is noted by the Assessing Officer in the reasons recorded by him that the assessee has claimed deduction u/s 80IB at Banther Unit and net profit of Banther Unit is declared at Rs.20,75,158/- which includes the amount of duty drawback of Rs.25,43,130/-. The Assessing Officer has noted that if the [2]

amount of duty drawback is excluded, there remains no profit and therefore, the assessee is not entitled for claiming deduction u/s 80IB. Now in the light of these facts, it has to be decided as to whether the Assessing Officer could have rectified the assessment order by passing order u/s 154 instead of resorting to reopening the assessment. At this juncture, we would like to consider and compare the facts in the case of Hindustan Unilever Ltd. (supra). In this case, it is noted by Hon'ble Bombay High Court that the Assessing Officer made a computational error by deducting the loss arising to the assessee from plantation division, which had already been accounted for in the computation of business income disclosed by the assessee. Under these facts, it was held that this mistake was capable of being rectified u/s 154 of the Act. In our considered opinion, a computational error, as in that case, can be rectified u/s 154 but in the present case, the error is not computational but the error is regarding allowability of deduction u/s 80IB. Hence, in our considered opinion, this judgment of Hon'ble Bombay High Court is not applicable in the facts of the present case because in the present case, the Assessing Officer cannot rectify the assessment order by resorting to the provision of section 154 and therefore, we do not find any merit in this Misc. Application moved by the assessee because it could not establish any mistake which could be rectified.

4. In the result, the Misc. Application of the assessee stands dismissed.

(Order was pronounced in the open court on the date mentioned on the caption page)

Sd/. Sd/.

(SUNIL KUMAR YADAV) ( A. K. GARODIA ) Judicial Member Accountant Member

Dated:01/01/2015 *C.L.Singh

Copy of the order forwarded to : 1. The Appellant 2. The Respondent. 3. Concerned CIT 4. The CIT(A) 5. DR, ITAT, Lucknow Asstt. Registrar