DCIT 22(3), NAVI MUMBAI v. CRESCENT CONSTRUCTION CO., NAVI MUMBAI

ITA 6405/MUM/2009 | 2005-2006
Pronouncement Date: 30-09-2011 | Result: Dismissed

Appeal Details

RSA Number 640519914 RSA 2009
Assessee PAN AACFC3931A
Bench Mumbai
Appeal Number ITA 6405/MUM/2009
Duration Of Justice 1 year(s) 9 month(s) 19 day(s)
Appellant DCIT 22(3), NAVI MUMBAI
Respondent CRESCENT CONSTRUCTION CO., NAVI MUMBAI
Appeal Type Income Tax Appeal
Pronouncement Date 30-09-2011
Appeal Filed By Department
Order Result Dismissed
Bench Allotted C
Tribunal Order Date 30-09-2011
Date Of Final Hearing 04-08-2011
Next Hearing Date 04-08-2011
Assessment Year 2005-2006
Appeal Filed On 11-12-2009
Judgment Text
IN THE INCOME TAX APPELLATE TRIBUNAL MUMBAI BENCHES C MUMBAI BEFORE SHRI R.K. PANDA ACCOUNTANT MEMBER AND SHRI V.D. RAO JUDICIAL MEMBER ITA NO.6405/MUM/2009 ASSESSMENT YEAR : 2005-06 D.C.I.T. 22(3) 3 RD FLOOR TOWER NO.6 VASHI RLY. STATION COMPLEX VASHI NAVI MUMBAI VS. M/S. CRESCENT CONSTRUCTION CO. 527 ARENJA CORNER SECTOR-17 VASHI NAVI MUMBAI PAN NO : AACFC3931A (APPELLANT) (RESPONDENT) APPELLANT BY : SMT DEVI SINGH RESPONDENT BY : SHRI PRAKASH K. JOTWANI DATE OF HEARING : 04.08.2011 DATE OF PRONOUNCEMENT : 30.09.2011 ORDER PER R. K. PANDA (AM) : THIS APPEAL FILED BY THE REVENUE IS DIRECTED AGAINS T THE ORDER DATED 29.09.2009 PASSED BY THE LD.CIT(A)-33 MUMBAI RELA TING TO A.Y. 2005-06. 2. THE GROUNDS RAISED BY THE REVENUE READ AS UNDER : 1. ON THE FACTS AND CIRCUMSTANCES OF THE CASE AND IN LAW THE LD. CIT(A) HAS ERRED IN DIRECTING THE ASSESSING OFF ICER TO CONFINE THE COMPUTATION OF INCOME OF THE ASSESSEE TO THE RE CTIFICATION TO BE EFFECTED ON THE INCOME DETERMINED AS PER ORDER D TD. 31.12.2007 U/S.143(3) AGAINST WHICH THE RECTIFICATI ON APPLICATION WAS FILED BY THE ASSESSEE. 2. ON THE FACTS AND CIRCUMSTANCES OF THE CASE AND I N LAW THE LD. CIT(A) HAS ERRED IN DELETING THE ADDITION M ADE IN THE ITA NO.6405/MUM/2009 M/S. CRESCENT CONSTRUCTION CO. 2 ORDER U/S.154 OF THE I.T. ACT TREATING THE SAME AS LEGALLY NON- MAINTAINABLE. 3. THE APPELLANT PRAYS THAT THE ORDER OF THE CIT(A) ON THE ABOVE GROUNDS BE REVERSED AND THAT OF THE ASSESSING OFFICER BE RESTORED. 4. THE APPELLANT CRAVES LEAVES TO AMEND OR ALTER AN Y GROUNDS OR ADD A NEW GROUND WHICH MAY BE NECESSARY. 3. FACTS OF THE CASE IN BRIEF ARE THAT THE ASSESS EE FILED RETURN OF INCOME FOR ASSESSMENT YEAR 2005-06 ON 31.10.2005 DE CLARING INCOME OF `. 34 96 990/-. THE ASSESSMENT WAS COMPLETED U/S.143(3 ) OF THE INCOME TAX ACT 1961 VIDE ORDER DATED 31.12.2007 WHEREIN I N ADDITION TO OTHER DISALLOWANCES THE ASSESSING OFFICER MADE DISALLOWA NCE OF `. 2 60 25 775/- U/S.40(A)(IA) OF THE INCOME TAX ACT 1961 ON THE GR OUND THAT TDS PAYMENT AS REQUIRED TO BE DONE U/S.40(A)(IA) HAD NOT BEEN M ADE OR PAID LATE. AN APPEAL AGAINST THE ASSESSMENT ORDER WAS FILED BEFOR E THE CIT(A) XXII MUMBAI CHALLENGING THE ADDITIONS / DISALLOWANCES MA DE. MEANWHILE THE ASSESSEE ALSO MOVED AN APPLICATION U/S.154 OF THE I NCOME TAX ACT 1961 ON 19.06.2008 BEFORE THE ASSESSING OFFICER REQUEST ING FOR RECTIFICATION IN THE AMOUNT OF RS.2 60 25 775/- DISALLOWED U/S.40(A) (IA) POINTING OUT THAT AS THE LAW REGARDING THE PROVISIONS OF THIS SECTION HAS BEEN AMENDED WITH RETROSPECTIVE EFFECT BY FINANCE ACT 2008 THEREFORE DISALLOWANCE MADE IS MISTAKE APPARENT FROM RECORD AND NEEDS TO BE RECTIF IED. THE ASSESSEE WAS OF THE VIEW THAT FROM THE PAYMENTS ON WHICH THE TAX HAS BEEN DEDUCTED IN THE MONTH OF MARCH OF THE FINANCIAL YEAR AND DEPOS ITED IN THE NEXT FINANCIAL YEAR BEFORE THE DUE DATE OF FILING OF RET URN AS PROVIDED U/S.139(1) OF THE INCOME TAX ACT 1961 WERE NOT TO BE DISALLOWED ITA NO.6405/MUM/2009 M/S. CRESCENT CONSTRUCTION CO. 3 U/S.40(A)(IA) OF THE ACT. THE ASSESSEE WAS OF THE V IEW THAT KEEPING THIS IN MIND `. 14 26 811/- WOULD BE THE AMOUNT THAT WOULD NOT QUAL IFY FOR DISALLOWANCE U/S.40(A)(IA) OF THE ACT IN THE CURREN T YEAR AS TDS DEDUCTED ON IT HAD BEEN PAID / DEPOSITED BEFORE FILING OF RE TURN OF INCOME. THE ASSESSING OFFICER VIDE ORDER DATED 02.12.2008 U/S.1 54 OF THE INCOME TAX ACT 1961 RECTIFIED THE ORDER PASSED U/S.143(3). H OWEVER WHILE DOING SO THE ASSESSING OFFICER MADE FURTHER DISALLOWANCES U/ S.40(A)(IA) AND THEREBY REVISED THE INCOME OF THE ASSESSEE TO `. 5 86 74 433/- (THE FIGURE OF DISALLOWANCE OF `. 2 60 25 775/- U/S.40(A)(IA) IN U/S.143(3) OF THE AC T WHICH WAS THE SUBJECT OF RECTIFICATION WAS ALSO INC LUSIVE). THE ASSESSEE FILED AN APPEAL BEFORE THE LD. CIT(A) CHALLENGING T HE ORDER OF THE AO ENHANCING THE DISALLOWANCE U/S.154 OF THE IT ACT FR OM `. 2 60 25 775/- TO `. 5 86 74 433/-. 4. IN APPEAL THE LD. CIT(A) DELETED THE ADDITION M ADE BY THE AO IN THE 154 PROCEEDINGS BY HOLDING AS UNDER :- I HAVE CAREFULLY CONSIDERED THE ORDER OF THE ASSES SING OFFICER RECORDS OF THE CASE AND THE CASE LAWS RELI ED UPON BY THE ASSESSEE. SECTION 154 OF THE INCOME TAX ACT 19 61 DEALS WITH RECTIFICATION OF MISTAKES. THIS SECTION READS AS UNDER : SECTION 154 RECTIFICATION OF MISTAKE (1) WITH A VIEW TO RECTIFIYING ANY MISTAKE APPARENT FRO M THE RECORD AN INCOME TAX AUTHORITY REFERRED TO IN SECTI ON 116 MAY A) AMEND ANY ORDER PASSED BY IT UNDER THE PROVISIONS O F THIS ACT. B) AMEND ANY INTIMATION OR DEEMED INTIMATION UNDER SUB SECTION (1) OF SECTION 143. FROM THE ABOVE IT IS APPARENT THAT THE MISTAKE TH AT HAS TO BE RECTIFIED SHOULD BE APPARENT FROM RECORD. IF THE MISTAKE DID NOT COME IN THE CATEGORY OF MISTAKE APPARENT FR OM RECORD ITA NO.6405/MUM/2009 M/S. CRESCENT CONSTRUCTION CO. 4 BECAUSE OF THE FACT THAT THE MISTAKE WAS NOT OBVIOU S GLARING OR SELF EVIDENT OR MISTAKE WAS SUCH THAT TO ESTABLISH IT EITHER LONG DRAWN ARGUMENT WAS REQUIRED OR INVESTIGATION INTO F ACT WAS NECESSARY THEN SECTION 154 IS NOT APPLICABLE. SECT ION 154 COULD NOT BE USED TO SEEK A FRESH EVIDENCE WHICH WAS CONT ROVERSIAL. THE MISTAKE TO BE RECTIFIED U/S.154 SHOULD BE APPAR ENT FROM RECORD AND NOT SOMETHING WHICH CAN BE ESTABLISHED B Y LONG DRAWN PROCESS OF REASONING FOR THE PURPOSE OF RECTI FICATION. IN THE PRESENT CASE I FIND THAT THE CONTENTION OF THE ASSESSEE CANNOT BE REJECTED. DISALLOWANCES MADE AFTER VERIFI CATION OF BOOKS OF ACCOUNTS CANNOT BE EQUATED TO MISTAKE IN T ERMS OF SECTION 154. THIS DISALLOWANCE SHOULD BE MADE AT TH E TIME OF EXAMINING AND VERIFYING THE BOOKS OF ACCOUNTS WHILE PASSING ORDER U/S.143(3) OF THE ACT. IN THIS CASE I FIND T HAT DURING THE COURSE OF ASSESSMENT PROCEEDINGS U/S.143(3) OF THE ACT AFTER DUE VERIFICATION AND INVESTIGATION THE ASSESSING O FFICER HAS DISALLOWED A SUM OF RS.2 60 25 775/- U/S.40(A)(IA) OF THE ACT FOR NON-COMPLIANCE TO TDS PROVISIONS. WITH THE PASS ING OF RETROSPECTIVE AMENDMENT TO THIS SECTION BY FINANCE ACT 2008 THE ASSESSEE WAS ENTITLED TO A BENEFIT OF RS.14 26 811/- FROM THE ABOVE FIGURE AND AS SUCH SOUGHT RECTIFICATION U /S.154 OF THE ACT. THIS APPLICATION WAS ACCEPTED BY THE ASSESSING OFFICER WHO DULY RECTIFIED THE ORDER TO THIS EFFECT. HOWEVE R WHILE PASSING ORDER U/S.154 IT IS SEEN THAT THE ASSESSIN G OFFICER HAS ALSO PASSED AN ADVERSE ORDER STATING THAT THERE WER E OTHER MISTAKES APPARENT ON THE FACE OF RECORD AND MADE FU RTHER ADDITIONS U/S.40(A)(IA). HOWEVER THIS HAS BEEN DON E AFTER DUE VERIFICATION OF THE BOOKS OF ACCOUNTS OF THE ASSESS EE. I ALSO FIND THAT THIS ORDER U/S.154 HAS FURTHER BEEN RECTIFIED BY THE ASSESSING OFFICER BY PASSING ANOTHER ORDER U/S.154 DATED 17.08.2009 VIDE WHICH THE ADDITIONS MADE IN THE EAR LIER ORDER MADE U/S.154 HAS BEEN REDUCED BY RS.1 47 96 090/-. I FIND THAT THIS ALSO HAS BEEN DONE BY THE ASSESSING OFFIC ER AFTER PERUSING THE VARIOUS RECORDS PRODUCED BY THE ASSESS EE INCLUDING THE LEDGER ACCOUNTS. IN FACT THERE HAS B EEN A DISCUSSION ON ALL THE ISSUES WHICH INVOLVE THE BOOK S OF ACCOUNTS OF THE ASSESSEE AND THEIR EXAMINATION AS DETAILED I N THE ORDER DATED 17.08.2009. I FIND THAT THE ABOVE GOES TO SHOW THAT THE POINTS THAT HAVE BEEN COVERED BY THE ASSESSING OFFICER IN MAKIN G ADDITIONAL ADDITIONS U/S.40(A)(IA) IN HIS ORIGINAL ORDER U/S.154 AND FURTHER RECTIFYING IT BY PASSING ANOTHER ORDER U/S.154 ARE NOT OBVIOUS AND PATENT MISTAKES. THEY ARE SOMETHING WHICH HAVE BEEN ESTABLISHED BY LONG DRAWN PROCESS OF REAS ONING. THE DECISION ON DEBATABLE POINTS CANNOT BE MISTAKE APPA RENT FROM RECORD. IN THE CASE OF CIT VS. SOUTH INDIA BANK (20 01) 166 CTR (SC) 216 (2001) 249 ITR 304 (SC) AND ITO VS. VOLKA RT BROS ITA NO.6405/MUM/2009 M/S. CRESCENT CONSTRUCTION CO. 5 (1971) 82 ITR 50 (SC) THE APEX COURT HAS CLEARLY S TATED THAT WHERE DISPUTED FACTS AND DEBATABLE POINTS ARE INVOL VED POWERS OF RECTIFICATION U/S.154 CANNOT BE USED. IT WOULD MEAN THAT THE AUTHORITY THAT IS USING THIS POWER SHOULD NOT HAVE TO REVIEW THE ENTIRE MATERIAL BEFORE COMING TO THE CON CLUSION. THIS OBSERVATIONS HAVE ALSO BEEN MADE BY HONBLE GUWAHAT I HIGH COURT IN THE CASE OF A DAS & CO. VS. DCIT & ORS (19 96) 132 CTR (GUW) 16 (1996) 217 ITR 29 (GUW) SAME VIEW WA S ADOPTED IN THE CASE OF CIT VS. SIMPLEX CONCRETE PIL ES (I) PVT. LTD. (1978) 112 ITR 812 (CAL) VISHNU KUMAR BEGHEL VS CI T (1996) 132 CTR (ALL) 403 (1996) 217 ITR 273(ALL) KALURAM VS. CIT (1983) 35 CTR (MP) 62 (1983) 141 ITR 589 (MP). KEEPING THE ABOVE IN MIND THE CASE OF THE ASSESSE E IS TAKEN INTO CONSIDERATION IT IS SEEN THAT BOTH THE ORDERS U/S.154 HAVE BEEN MADE AFTER DETAILED INVESTIGATION INTO TH E CASE RECORDS OF THE ASSESSEE I.E. BOOKS OF ACCOUNTS. THI S COULD HAVE BEEN DONE ONLY AT THE TIME OF PASSING ORDER U/S.143 (3) AND NOT AT THE TIME OF PASSING ORDER U/S.154 OF THE ACT. IT IS OBVIOUS THAT THE ISSUES INVOLVED WERE DEBATABLE AS IT REQUIRED T HE ASSESSING OFFICER TO PASS SECOND ORDER U/S.154 TO RECTIFY HIS FIRST RECTIFICATION ORDER AFTER EXAMINING THE BOOKS OF AC COUNTS AND PROVIDING OPPORTUNITIES TO THE ASSESSEE IN THE FORM OF HEARINGS AS IS EVIDENT FROM THE ORDER. FROM THE OBSERVATIONS AND THE JUDICIAL PRONOUNCEMENTS MADE BY THE HON'BLE COURTS OF LAW ON THIS SUBJECT I FIND THAT THE ORDER PASSED BY THE A SSESSING OFFICER CANNOT BE UPHELD SINCE THIS ORDER SUFFERS FROM THE BASIC FAULT THAT THE ISSUES COVERED DO NOT QUALIFY AS MIS TAKE APPARENT FROM RECORD AS PROPOUNDED BY THE INCOME TAX ACT. TH E VERY FACT THAT THE ORDER NEEDED FURTHER RECTIFICATION BY THE ASSESSING OFFICER INVOLVING EXAMINATION OF BOOKS OF ACCOUNTS FURTHER STRENGTHENS THE ARGUMENT OF THE ASSESSEE THAT THIS ISSUE WAS NOT TO BE EXAMINED U/S.154 OF THE INCOME TAX ACT 1 961. THE ASSESSING OFFICER WAS TO REMAIN CONFINED TO THE ISS UES AND AMOUNTS COVERED IN THE ORIGINAL ORDER U/S.143(3) OF THE INCOME TAX ACT 1961 ON WHICH THE RECTIFICATION HAD BEEN S OUGHT. IN VIEW OF THIS THE GROUND OF APPEAL RAISED BY THE AS SESSEE ON THIS ISSUE IS ALLOWED AND THE ASSESSING OFFICER IS DIRECTED TO CONFINE THE COMPUTATION OF INCOME OF THE ASSESSEE T O THE RECTIFICATION TO BE EFFECTED ON THE INCOME DETERMIN ED AS PER ORDER DATED 31.12.2007 U/S.143(3) AGAINST WHICH THE RECTIFICATION APPLICATION WAS FILED BY THE ASSESSEE E. CONSEQUENTLY THE ADDITION MADE IN THE ORDER U/S.15 4 OF THE INCOME TAX ACT 1961 AFTER DETAILED DISCUSSION BY T HE ASSESSING OFFICER DO NOT SURVIVE AND ARE DELETED AS NOT LEGALLY MAINTAINABLE. ITA NO.6405/MUM/2009 M/S. CRESCENT CONSTRUCTION CO. 6 5. AGGRIEVED WITH THE ORDER OF LD. CIT(A) THE REVE NUE IS IN APPEAL BEFORE US. 6. THE LD. DR REFERRING TO THE SUBMISSIONS MADE BEF ORE THE LD. CIT (A) SUBMITTED THAT THE ASSESSEE HAS CATEGORICALLY ACCEP TED THAT THE ISSUE REGARDING DISALLOWANCE U/S.40(A)(IA) HAS FINALLY BE EN RESOLVED BY ORDER U/S.154 DATED 02.12.2008 AND BOTH THE ASSESSEE AND THE DEPARTMENT HAVE AGREED FOR THE SAME. ON THIS UNDERSTANDING FRO M THE AO AND THE ASSESSEE THE LD. CIT(A) HAS NOT ADJUDICATED THIS I SSUE. IN THE RECTIFICATION APPLICATION FILED ON 19.06.2008 THE ASSESSEE HIMSE LF HAS PROVIDED CERTAIN DETAILS FOR SUCH RECTIFICATION REFERENCE OF WHICH IS MADE ON PAGE 1 AND 2 OF THE RECTIFICATION ORDER. ON RECEIPT OF SUCH RECTIFI CATION APPLICATION IN WHICH DETAILS OF TDS WAS SUBMITTED THE AO CAME TO THE CO NCLUSION THAT DISALLOWANCE U/S.40(A)(IA) SHOULD NOT BE MADE ON LO WER SIDE THEREFORE THE AO HAS ISSUED NOTICE U/S.154 ON 19.08.2008 ASKING T HE ASSESSEE AS TO WHY DISALLOWANCE U/S.40(A)(IA) SHOULD NOT BE MADE I N RESPECT OF TRANSPORT CHARGES AND MACHINERY HIRE CHARGES. THE ASSESSEE IN HIS REPLY SUBMITTED THAT FURTHER DISALLOWANCE OF `. 2 20 61 284/- MAY BE MADE U/S.40(A)(IA) AND HAS ALSO GIVEN NO OBJECTION FOR SUCH DISALLOWAN CE A COPY OF WHICH IS PLACED AT PAGE 89 OF THE PAPER BOOK. THE ASSESSEE H AS ALSO SUBMITTED WORKING OF SUCH DISALLOWANCE U/S.40(A)(IA) PLACED ON PAGE 90 OF THE PAPER BOOK. HE SUBMITTED THAT SINCE THE ASSESSEE IN THE P RESENT CASE HAS HIMSELF AGREED FOR DISALLOWANCE THERE IS NO REASON THAT TH E ASSESSEE SHOULD ONCE AGAIN CONTEST THE SAME BEFORE THE APPELLATE AUTHORI TY. HE SUBMITTED THAT THE LETTER AGREEING ADDITION U/S.40(A)(IA) WAS FIL ED ON 18.11.2008 ITA NO.6405/MUM/2009 M/S. CRESCENT CONSTRUCTION CO. 7 RECTIFICATION ORDER U/S.154 PASSED ON 02.12.2008 AN D ORDER OF LD. CIT(A) AGAINST THE ORDER U/S.143(3) WAS PASSED ON 24.12.20 08. TILL THAT DATE THE ASSESSEE WAS AGREED FOR DISALLOWANCE AND THERE IS N O ISSUE AS FAR AS DISALLOWANCE IS CONCERNED. ACCORDING TO HIM THE OBV IOUS REASON FOR THE ASSESSEE WAS THAT HE DID NOT WANT THIS ISSUE TO BE ADJUDICATED BY THE LD. CIT(A) SINCE ADJUDICATION OF THE SAME WOULD HAVE C ALLED FOR ENHANCEMENT. HE SUBMITTED THAT THE MALAFIDE INTENTION OF THE ASS ESSEE IS SELF EVIDENT FROM THE FACT THAT APPEAL HAS BEEN FILED ON 06.03.2 009 AGAINST THE ORDER DATED 02.12.2008 SINCE THE ASSESSEE WANTED TO AVOI D THE ATTENTION OF THE LD. CIT(A). SINCE THE ASSESSEE HAS WITHHELD FACTUAL INFORMATION ABOUT THE APPEAL ORDER AGAINST THE ASSESSMENT ORDER PASSED U/ S.143(3) RECTIFICATION APPLICATION ETC. AND SINCE THE ASSESSEE HAS NOT SUB MITTED ORIGINAL APPEAL ORDER PASSED AGAINST ORDER PASSED U/S.143(3) IN WH ICH IT HAS BEEN CONFIRMED THAT HE HAS ACCEPTED THE RECTIFICATION OR DER U/S.154 THEREFORE THE ASSESSEE CANNOT CHALLENGE THE VALIDITY OF 154 O RDER AT A LATER STAGE BEFORE THE LD. CIT(A). HE ACCORDINGLY SUBMITTED THA T THE ORDER OF THE LD. CIT(A) ON THIS ISSUE BE SET ASIDE. 7. THE LD. COUNSEL FOR THE ASSESSEE ON THE OTHER HA ND WHILE SUPPORTING THE ORDER OF THE LD. CIT(A) REITERATED T HE SAME SUBMISSIONS AS MADE BEFORE THE LD. CIT(A). HE VEHEMENTLY ARGUED TH AT THERE IS NO MALAFIDE INTENTION AT ALL. HE SUBMITTED THAT THERE IS NO MISTAKE APPARENT IN RECORD FOR WHICH THE AO COULD HAVE INVOKED THE P ROVISIONS OF 154 BECAUSE IN THE ORDER PASSED U/S.143(3) EVERYTHING H AS BEEN VERIFIED AND ITA NO.6405/MUM/2009 M/S. CRESCENT CONSTRUCTION CO. 8 NECESSARY ADDITIONS HAD BEEN MADE. FURTHER THE DR H AS NOT CHALLENGED AS TO WHETHER THE ORDER PASSED U/S.154 IS CORRECT OR N OT. HE ACCORDINGLY SUBMITTED THAT THE GROUND RAISED BY THE REVENUE SHO ULD BE DISMISSED. 8. WE HAVE CONSIDERED THE RIVAL ARGUMENTS MADE BY B OTH THE SIDES PERUSED THE ORDERS OF THE AO AND THE LD. CIT(A) AND THE PAPER BOOK FILED ON BEHALF OF THE ASSESSEE. WE HAVE ALSO CONSIDERED THE VARIOUS DECISIONS CITED BEFORE US. THE FACTS ARE NOT IN DISPUTE. ADMI TTEDLY THE AO HAS COMPLETED THE ASSESSMENT U/S.143(3) AFTER DETAILED EXAMINATION OF THE BOOKS OF ACCOUNTS AND MADE THE DISALLOWANCE. WE FIN D WHEN THE ASSESSEE FILED THE PETITION U/S.154 OF THE I.T ACT THE AO G RANTED RELIEF TO THE ASSESSEE AS ASKED FOR BY THE ASSESSEE. HOWEVER IN THE SAID ORDER THE AO WANTED TO MAKE FURTHER ADDITIONS ON THE BASIS OF MA TERIAL PROVIDED BY THE ASSESSEE. IN OUR OPINION THE SAME IS NOT CORRECT. IT IS THE SETTLED PROPORTION OF LAW THAT AN ORDER U/S.154 OF THE ACT CAN BE MADE TO RECTIFY ANY MISTAKE WHICH IS APPARENT FROM THE RECORD WHIC H IS OBVIOUS GLARING OR SELF EVIDENT. A MISTAKE WHICH REQUIRES LONG DRAW N ARGUMENTS OR INVESTIGATION INTO FACT CANNOT BE RECTIFIED U/S.154 OF THE I.T ACT. FURTHER THE ISSUE INVOLVED IS A DEBATABLE ONE. IT HAS BEEN HELD IN A NUMBER OF DECISIONS INCLUDING THE DECISION OF THE HON'BLE SUP REME COURT IN THE CASE OF ITO VS. VOLKART BROS (SUPRA) THAT DEBATABLE ISSU ES CANNOT BE RECTIFIED U/S.154 OF THE I.T ACT. MERELY BECAUSE THE ASSESSE E DURING THE 154 PROCEEDINGS HAS AGREED FOR SUCH ADDITION THE SAME IN OUR OPINION CANNOT BE GROUND TO SUSTAIN THE SAME. IN THE INSTANT CASE THE REMEDY IN OUR OPINION WAS ELSEWHERE AND NOT THROUGH 154 PROCEEDI NGS. WE ALSO DO NOT ITA NO.6405/MUM/2009 M/S. CRESCENT CONSTRUCTION CO. 9 FIND ANY MERIT IN THE ARGUMENT ADVANCED BY THE LD. DR THAT THE OBVIOUS REASON FOR THE ASSESSEE WAS THAT HE DID NOT WANT TH E ISSUE TO BE ADJUDICATED BY THE LD. CIT(A) SINCE ADJUDICATION O F THE SAME WOULD HAVE CALLED FOR ENHANCEMENT. FURTHER MERELY BECAUSE THE ASSESSEE FILED THE APPEAL ON 06.03.2009 AGAINST THE ORDER DATED 02.12. 2008 THE SAME IN OUR OPINION CANNOT BE HELD AS MALAFIDE ON THE PART OF THE ASSESSES AS ARGUED BY THE LD. DR. 9. IN VIEW OF THE ABOVE AND IN VIEW OF THE ELABORAT E ORDER PASSED BY THE LD. CIT(A) ON THIS ISSUE WE FIND NO INFIRMITY IN T HE SAME. ACCORDINGLY THE SAME IS UPHELD. THE GROUNDS RAISED BY THE REVENUE A RE ACCORDINGLY DISMISSED. 10. IN THE RESULT THE APPEAL FILED BY THE REVENUE IS DISMISSED. ORDER PRONOUNCED ON THIS 30 TH DAY OF SEPTEMBER 2011. SD/- ( V. D. RAO ) JUDICIAL MEMBER SD/- (R.K. PANDA) ACCOUNTANT MEMBER MUMBAI DATED : 30.09.2011 COPY FORWARDED TO : 1. THE APPELLANT 2. THE RESPONDENT 3. THE C.I.T. 4. CIT (A) 5. THE DR C- BENCH ITAT MUMBAI //TRUE COPY// BY ORDER ASSISTANT REGISTRAR ITAT MUMBAI BENCHES MUMBAI ROSHANI