COMMISSIONER OF INCOME TAX Vs. KOTHARI IMPEX

JUDGEMENT

(1.) THIS appeal has been filed by the Revenue against the judgment of the learned Tribunal dt. 29th July, 2004, affirming the order of the learned CIT(A) dt. 15th March, 1999, whereby the learned CIT(A) had set aside the order of the AO. The AO had dismissed the assessee's application filed under Section 154 of the IT Act, for rectification of the mistake. The appeal was admitted by framing following substantial question of law: Whether on the facts and in the circumstances of the case, the learned Tribunal is justified in upholding the order passed by the learned CIT(A) by holding that the impugned adjustment made by the AO was outside the purview of Section 143(1)(a) of the IT Act.?

(2.) BEREFT of unnecessary details the facts are, that the assessee had filed the return, and thereupon after taking recourse to procedure provided under Section 131 etc., and giving necessary opportunity of hearing to the assessee, the assessment order was made on 26th Aug., 1996. In the return the assessee had claimed deductions under Section 80HHC, but then, the assessee did not enclose the required documents. This return was filed on 31st Oct., 1995. On account of absence of the requisite report, the deduction was not allowed, and addition was made in the income to that extent, with all necessary consequences. Thereafter the assessee filed an application under Section 154 of the Act, claiming inter alia, that since the auditor of the assessee was of the opinion, that since the sale proceeds were not received within six months, and permission for extension has not been received from the CIT; the report cannot be given, and regarding delay in receipt of payments on account of the exports, relied upon the Board's circulars dt. 24th Aug., 1994 [(1994) 120 CTR (St) 31] and 25th Oct., 1993 [(1993) 115 CTR (St) 2].

(3.) FIRST of all we take up the cases considered by the learned CIT(A). So far as the first judgment relied upon, said to be in CIT v. Shivanand Electronics : [1994]209ITR63(Bom) , is concerned, despite best efforts, even with the assistance of the learned Counsel for either side, we could not locate the judgment.