BNP PARIBAS INDIA HOLDING P. LTD.,MUMBAI vs. ACIT -14(1)(1), MUMBAI

PER RAVISH SOOD, J.M: The captioned appeal filed by the assessee is directed against the order passed by the CIT(A)-22 Mumbai, dated 15.01.2020, which in turn arises from the assessment order passed by the A.O under Sec. 143(3) of the Income Tax Act 1961 (for short ‗Act‘), dated 26.06.2019 for A.Y. 2017-18. The revenue has assailed the impugned order on the following grounds of appeal before us:

BNP Paribas India Holding P. Ltd. Vs. ACIT- 14(1)(1), Mumbai. 2 A.Y 2017-18 – (learned AO) issued under section 143(3) of the Act by making an upward adjustment for reversal of provision for diminution in value of investments, amounting to Rs 81,72,24,557; without considering the detailed submissions made before the CIT(A) by the Appellant. The CIT(A) failed to appreciate that the action of the learned AO resulted in the Appellant being assessed twice on the same amount of Rs 81,72,24,557, once in AY 2013-14 and once in AY 2017-18.

2. On the facts and circumstances of the case, the learned CIT(A) erred in holding that no addition had been made in the order under section 143(3) of the Act even when the learned AO had agreed, on the merits, with the income processed under section 143(1) of the Act and upheld the income computed in the intimation under section 143(1) of the Act and raised the demand under section 156 of the Act pursuant to order under section 143(3) of the Act.

3. On the facts and circumstances of the case, the learned CIT(A) erroneously held that the Appellant was not aggrieved on account of the order issued under section 143(3) of the Act, even when the learned AO had agreed, on the merits, with the income processed under section 143(1) of the Act and further the computation in the order under section 143(3) of the Act and the notice of demand under section 156 of the Act upheld the addition made in intimation under section 143(1) of the Act.

4. On facts and circumstances of the case, the learned AO erred in levying incorrect interest under section 234B and section 234C of the Act amounting to Rs 7,66,13,553 and Rs 1,42,61,232 respectively. The Appellant denies its liability for such interest under section 234B and section 234C of the Act.‖

3. As is discernible from the return of income for A.Y 2013-14, the assessee had created a ―Provision for diminution in the value of Investments‖ of Rs. 81,72,24,557/- during the year ended 31st March, 2013. However, the said provision was disallowed by the assessee in its return of income for A.Y 2013- 14. The aforesaid factual position can safely be gathered from a perusal of the assessee‘s return of income for A.Y 2013-14, wherein in ―Schedule BP- A(15)‖ [i.e as per (7h of Part-OI)] an amount aggregating to Rs. 82,27,73,590 (including ―Provision for diminution in the value of Investments‖ of Rs. 81,72,24,557/-) was disallowed by the assessee u/s 37 of the Act. Resultantly, the assessee had in its return of income for A.Y 2013-14 reported an interest income of Rs. 13,16,82,560/- under the head ―Ïncome from other sources‖. Subsequently, the case of the assessee was selected for scrutiny assessment and the A.O vide his order passed u/s 143(3), dated 28.10.2016 assessed its income at Rs. 13,16,82,560/-.

4. During the year in question i.e A.Y 2017-18 the assessee had reversed the aforesaid ―Provision for diminution in the value of Investments‖ of Rs. BNP Paribas India Holding P. Ltd. Vs. ACIT- 14(1)(1), Mumbai. 4 A.Y 2017-18 – 81,72,24,557/- in its books of account. As can be gathered from the return of income for A.Y 2017-18, the total of credits in the assessee‘s profit & loss a/c aggregating to Rs. 89,32,69,817/- comprised of ,viz. (i). interest income :Rs. 7,60,45,260/-; and (ii). reversal of provision for diminution in value of investments :Rs. 81,72,24,557/-. As per Col. A3(c) of the ―Schedule BP- Computation of Income from business or profession‖ of the return of income, the assessee had while computing its income under the head ―Profits and gains from business or profession‖ excluded the aforesaid amount of Rs. 89,32,69,817/- credited in its ‗Profit & loss a/c‘ on the pretext that the same was to be separately considered under the head ―Income from ther sources‖. However, the assessee had as per Col. 4 of the ―Schedule OS [Income from other sources] - accounted for only the interest income of Rs. 7,60,45,260/- under the head ―Income from other sources‖. As for the reversal of ―Provision for diminution in value of investments‖ of Rs. 81,72,24,557/- that was excluded while computing of its income under the head ―Profits and gains from business or profession‖, the same was however not offered by the assessee for tax under any head of income in its return of income, for the reason, that it was already disallowed in A.Y 2013-14.

6. In the mean time the case of the assessee fort he year under consideration was selected for scrutiny assessment u/s 143(2) of the Act. Before the A.O, the assessee objected to the upward adjustment of its income on account of reversal of the ―Provision for diminution in the value of Investments‖ of Rs. 81,72,24,557/-. However, the A.O was of the view that as the assessee had not claimed any deduction of the ―Provision for diminution in the value of Investments‖ in ―Schedule BP‖ of its return of income, therefore, there was no reason for him to interfere as regards its income processed u/s 143(1) of the Act. Observing, that no addition was being made in the assessment framed by him, the A.O assessed the income vide his order passed u/s 143(3), dated 26.06.2019 at Rs. 89,30,72,400/- i.e the income processed vide the intimation u/s 143(1), dated 30.03.2019.

BNP Paribas India Holding P. Ltd. Vs. ACIT- 14(1)(1), Mumbai. 6 A.Y 2017-18 –

9. Our indulgence in the present appeal has been sought by the assessee, to adjudicate, as to whether or not the CIT(A) is correct in concluding that as the addition made on account of reversal of the ―Provision for diminution in the value of Investments‖ of Rs. 81,72,24,557/- did not emerge from the impugned order passed by the A.O u/s 143(3), dated 30.03.2019, the same could not be adjudicated upon by him. As observed by us hereinabove, we have no doubt in our mind insofar principally answering the validity of the addition made in the hands of the assessee is concerned. In our considered view, now when the ―Provision for diminution in the value of Investments‖ of Rs. 81,72,24,557/- was disallowed/added back by the assessee while computing its income for the year in which the said provision was created i.e A.Y 2013-14, the same thereafter could not have been included in its income for the year in question i.e A.Y 2017-18 in which it was reversed in the books of account. In fact, taking a view to the contrary would undoubtedly amount to double taxation in the hands of the assessee. Both the ld. D.R and the A.O (who had appeared before us in the course of the hearing of the appeal) had fairly admitted that as BNP Paribas India Holding P. Ltd. Vs. ACIT- 14(1)(1), Mumbai. 8 A.Y 2017-18 – no deduction for the aforesaid provision was claimed by the assessee while computing its income for the year in which it was created i.e A.Y 2013-14, the inclusion of the same on its reversal in the books of account during the year in question i.e A.Y 2017-18 would lead to double taxation in its hands. However, the controversy involved in the present appeal hinges around the aspect that as whether an adjustment made vide an intimation u/s 143(1) can thereafter be dislodged by the A.O while framing the assessment u/s 143(3) of the Act. Admittedly, the assessee had not accepted the impugned adjustment to its returned income on account of reversal of the ―Provision for diminution in the value of Investments‖ of Rs. 81,72,24,557/- as carried out by the CPC, Bangalore, vide its intimation u/s 143(1), dated 30.03.1999, and had assailed the same by way of an application filed with the A.O u/s 154 of the Act. Before proceeding any further, we may herein observe that as the intimation u/s 143(1) was issued to the assessee company on 30.03.2019 i.e subsequent to the issuance of the Notice u/s 143(2), dated 21.08.2018, the same would thus not be valid in the eyes of law. Our aforesaid view is fortified by the judgment of the Hon’ble Supreme Court in the case of CIT Vs. Gujarat Electricity Board (2003) 260 ITR 484 (SC), wherein the Hon‘ble Apex Court had observed that it is not open to the revenue to issue an intimation under s. 143(1)(a) after notice for regular assessment has been issued under s. 143(2). Be that as it may, we shall for answering the issue that as to whether an adjustment made vide an intimation u/s 143(1) can thereafter be dislodged by the A.O while framing the assessment u/s 143(3) of the Act, hereinafter deliberate upon the powers of an A.O and also the rights vested with an assessee in the course of assessment proceedings.

“10. A long line of authorities establish clearly that an assessee is entitled to raise additional grounds not merely in terms of legal submissions, but also additional claims to wit claims not made in the return filed by it. It is necessary for us to refer to some of these decisions only to deal with two submissions on behalf of the department. The first is with respect to an observation of the Supreme Court in Jute Corporation of India Limited v. Commissioner of Income Tax, 1991 Supp (2) SCC 744 = (1991) 187 ITR 688. The second submission is based on a judgment of the Supreme Court in Goetze (India) Limited v. Commissioner of Income Tax. 11(A). In Jute Corporation of India Limited v. CIT, for the assessment year 1974-75 the appellant did not claim any deduction of its liability towards purchase tax under the provisions of the Bengal Raw Jute Taxation Act, 1941, as it entertained a belief that it was not liable to pay purchase tax under that Act. Subsequently, the appellant was assessed to purchase tax and the order of assessment was received by it on 23rd November, 1973. The appellant challenged the same and obtained a stay order. The appellant also filed an appeal from the assessment order under the Income Tax Act. It was only during the hearing of the appeal that the assessee claimed an additional deduction in respect of its liability to purchase tax. The Appellate Assistant Commissioner (AAC) permitted it to raise the claim and allowed the deduction. The Tribunal held that the AAC had no jurisdiction to entertain the additional ground or to grant relief on a ground which had not been raised before the Income Tax Officer. The Tribunal also refused the appellant's application for making a reference to the High Court. The High Court upheld the decision of the Tribunal and refused to call for a statement of case. It is in these circumstances that the appellant filed the appeal before the Supreme Court. The Supreme Court held as under :-

BNP Paribas India Holding P. Ltd. Vs. ACIT- 14(1)(1), Mumbai. 10 A.Y 2017-18 – "5. In CIT v. Kanpur Coal Syndicate, a three Judge bench of this Court discussed the scope of Section 31(3)(a) of the Income Tax Act, 1922 which is almost identical to Section 251(1)(a). The court held as under: (ITR p. 229) "If an appeal lies, Section 31 of the Act describes the powers of the Appellate Assistant Commissioner in such an appeal. Under Section 31(3)(a) in disposing of such an appeal the Appellate Assistant Commissioner may, in the case of an order of assessment, confirm, reduce, enhance or annul the assessment; under clause (b) thereof he may set aside the assessment and direct the Income Tax Officer to make a fresh assessment. The Appellate Assistant Commissioner has, therefore, plenary powers in disposing of an appeal. The scope of his power is co- terminus with that of the Income-tax Officer. He can do what the Income-tax Officer can do and also direct him to do what he has failed to do." (emphasis supplied) 6. The above observations are squarely applicable to the interpretation of Section 251(1)(a) of the Act. The declaration of law is clear that the power of the Appellate Assistant Commissioner is co-terminus with that of the Income Tax Officer, if that be so, there appears to be no reason as to why the appellate authority cannot modify the assessment order on an additional ground even if not raised before the Income Tax Officer. No exception could be taken to this view as the Act does not place any restriction or limitation on the exercise of appellate power. Even otherwise an Appellate Authority while hearing appeal against the order of a subordinate authority has all the powers which the original authority may have in deciding the question before it subject to the restrictions or limitations if any prescribed by the statutory provisions. In the absence of any statutory provision the Appellate Authority is vested with all the plenary powers which the subordinate authority may have in the matter. There appears to be no good reason and none was placed before us to justify curtailment of the power of the Appellate Assistant Commissioner in entertaining an additional ground raised by the assessee in seeking modification of the order of assessment passed by the Income Tax Officer." [emphasis supplied] (B) It is clear, therefore, that an assessee is entitled to raise not merely additional legal submissions before the appellate authorities, but is also entitled to raise additional claims before them. The appellate authorities have the discretion whether or not to permit such additional claims to be raised. It cannot, however, be said that they have no jurisdiction to consider the same. They have the jurisdiction to entertain the new claim. That they may choose not to exercise their jurisdiction in a given case is another matter. The exercise of discretion is entirely different from the existence of jurisdiction.

12. At page 694, after referring to certain observations of the Supreme Court in Additional Commissioner of Income-tax v. Gurjargravures P. Ltd., (1978) 111 ITR 1, the Supreme Court observed at Page 694 as under :- "The above observations do not rule out a case for raising an additional ground before the Appellate Assistant Commissioner if the ground so raised could not have been raised at that particular stage when the return was filed or when the assessment order was made, or that the ground became available on account of BNP Paribas India Holding P. Ltd. Vs. ACIT- 14(1)(1), Mumbai. 11 A.Y 2017-18 – change of circumstances or law. There may be several factors justifying raising of such new plea in appeal, and each case has to be considered on its own facts. If the Appellate Assistant Commissioner is satisfied he would be acting within his jurisdiction in considering the question so raised in all its aspects. Of course, while permitting the assessee to raise an additional ground, the Appellate Assistant Commissioner should exercise his discretion in accordance with law and reason. He must be satisfied that the ground raised was bona fide and that the same could not have been raised earlier for good reasons. The satisfaction of the Appellate Assistant Commissioner depends upon the facts and circumstances of each case and no rigid principles or any hard and fast rule can be laid down for this purpose." [emphasis supplied]

13. The underlined observations in the above passage do not curtail the ambit of the jurisdiction of the appellate authorities stipulated earlier. They do not restrict the new/additional grounds that may be taken by the assessee before the appellate authorities to those that were not available when the return was filed or even when the assessment order was made. The sentence read as a whole entitles an assessee to raise new grounds/make additional claims :- "if the ground so raised could not have been raised at that particular stage when the return was filed or when the assessment order was made..." "or" if "the ground became available on account of change of circumstances or law" The appellate authorities, therefore, have jurisdiction to deal not merely with additional grounds, which became available on account of change of circumstances or law, but with additional grounds which were available when the return was filed. The first part viz. "if the ground so raised could not have been raised at that particular stage when the return was filed or when the assessment order was made... "clearly relate to cases where the ground was available when the return was filed and the assessment order was made but "could not have been raised" at that stage. The words are "could not have been raised" and not "were not in existence". Grounds which were not in existence when the return was filed or when the assessment order was made fall within the second category viz. where "the ground became available on account of change of circumstances or law."

14. The facts in Jute Corporation of India Ltd., various judgments referred to therein as well as in subsequent cases, which we will refer to, establishes this beyond doubt. In many of the cases, the grounds were, in fact, available when the return was filed and/or the assessment order was made. In Jute Corporation of India Ltd., the ground was available when the return was filed. The assessee did not claim any deduction of its liability to pay purchase tax as "it entertained a belief that it was not liable to pay purchase tax under the Bengal Raw Jute Taxation Act, 1941". Thus, the ground existed when the return was filed. The assessment order was even made and received by the assessee. It is only after the appeal was filed that the assessee claimed a deduction in respect of the amount paid towards the purchase tax under the said Act. It is also significant to note that the assessee's entitlement to claim deduction had been held to be valid in view of an earlier judgment of the Supreme Court in Kedarnath Jute Manufacturing Company Limited v. Commissioner of Income-tax, (1971) 82 ITR 363. This BNP Paribas India Holding P. Ltd. Vs. ACIT- 14(1)(1), Mumbai. 12 A.Y 2017-18 – was, therefore, a case of error in perception/judgment. Despite the same, the Supreme Court upheld the decision of the Appellate Assistant Commissioner in allowing the deduction. The words "could not have been raised" must, therefore, be construed liberally and not strictly.

as originally filed before the Tribunal. Subsequently, the assessee by a letter, raised additional grounds to the effect that the said sum could not be included in the total income. The assessee contended that on a erroneous admission, no income can be included in the total income. It was further contended that the ITO and the Commissioner of Income-tax (Appeals) had erred and failed in their duty in adjudicating the matter correctly and by mechanically including the amount in the total income. It is pertinent to note that the assessee contended that it was entitled to the deduction in view of two orders of the Special Benches of the Tribunal and the assessee further stated that it had raised these additional grounds on learning about the legal position subsequently. The Tribunal declined to entertain these additional grounds. The Supreme Court did not answer the question on merits, but framed the following question and held as under :-

4. The Tribunal has framed as many as five questions while making a reference to us. Since the Tribunal has not examined the additional grounds raised by the assessee on merit, we do not propose to answer the questions relating to the merit of those contentions. We reframe the question which arises for our BNP Paribas India Holding P. Ltd. Vs. ACIT- 14(1)(1), Mumbai. 14 A.Y 2017-18 – consideration in order to bring out the point which requires determination more clearly. It is as follows: "Where on the facts found by the authorities below a question of law arises (though not raised before the authorities) which bears on the tax liability of the assessee, whether the Tribunal has jurisdiction to examine the same." Under Section 254 of the Income Tax Act the Appellate Tribunal may, after giving both the parties to the appeal an opportunity of being heard, pass such orders thereon as it thinks fit. The power of the Tribunal in dealing with the appeals is thus expressed in the widest possible terms. The purpose of the assessment proceedings before the taxing authorities is to assess correctly the tax liability of an assessee in accordance with law. If, for example, as a result of a judicial decision given while the appeal is pending before the Tribunal, it is found that a non-taxable item is taxed or a permissible deduction is denied, we do not see any reason why the assessee should be prevented from raising that question before the Tribunal for the first time, so long as the relevant facts are on record in respect of that item. We do not see any reason to restrict the power of the Tribunal under Section 254 only to decide the grounds which arise from the order of the Commissioner of Income Tax (Appeals). Both the assessee as well as the Department have a right to file an appea1/cross- objections before the Tribunal. We fail to see why the Tribunal should be prevented from considering questions of law arising in assessment proceedings although not raised earlier."

18. In the case before us, the CIT(A) and the Tribunal have held the omission to claim the deduction of Rs.40,00,000/- to be inadvertent. Both the appellate authorities held, after considering all the facts, that the assessee had inadvertently claimed a deduction of Rs.20,00,000/- paid after the end of the year in question. We see no reason to interfere with this finding. We see less reason to interfere with the exercise of discretion by the appellate authorities in permitting the respondent to raise this claim. That the respondent is entitled to the deduction in law is admitted and, in any event, clearly established. In the circumstances, the respondent ought not be prejudiced.

19. The orders of the CIT(A) and the Tribunal clearly indicate that both the appellate authorities had exercised their jurisdiction to consider the additional claim as they were entitled to in view of the various judgments on the issue, including the judgment of the Supreme Court in National Thermal Power Corporation Limited. This is clear from the fact that these judgments have been expressly referred to in detail by the CIT(A) and by the Tribunal.

20. We wish to clarify that both the appellate authorities have themselves considered the additional claim and allowed it. They have not remanded the matter to the Assessing Officer to consider the same. Both the orders expressly direct the Assessing Officer to allow the deduction of Rs.40,00,000/- under section 43B of the Act. The Assessing Officer is, therefore, now only to compute the respondent's tax liability which he must do in accordance with the orders allowing the respondent a deduction of Rs.40,00,000/- under section 43B of the Act.

BNP Paribas India Holding P. Ltd. Vs. ACIT- 14(1)(1), Mumbai. 15 A.Y 2017-18 – The appellant has not suggested, much less established that the omission was deliberate, mala-fide or even otherwise. The inference that the omission was inadvertent is, therefore, irresistible.

BNP Paribas India Holding P. Ltd. Vs. ACIT- 14(1)(1), Mumbai. 16 A.Y 2017-18 – In the aforesaid case of Pruthvi Broker & Shareholders (Pvt.) Ltd. (supra), the facts before the Hon‘ble jurisdictional High Court were that the assessee company had made a payment of SEBI fees of Rs.40 lac on 09.5.2003 (pertaining to F.Y. 2001-02) that was allowable as a deduction on payment basis u/s 43B of the Act. However, during the assessment year 2004-05, by way of an inadvertence the assessee company in its return of income had claimed a deduction of Rs.20 lac only as against the correct claim of deduction of Rs.40 lac. The assessee‘s claim for deduction u/s 43B of an amount of Rs. 40 lac was rejected by the A.O on the ground that he had no authority to allow any relief or deduction which had not been claimed in the return. On appeal, the CIT(A) and the Tribunal held the omission to claim the deduction of Rs.40 lac to be inadvertent, and after considering the fact that the assessee had by way of a bonafide mistake wrongly restricted its claim for deduction at Rs.20 lac, therein allowed its claim of deduction of Rs. 40 lac. On further appeal by the revenue, the High court while upholding the relief allowed by the lower authorities observed, that even assuming that the Assessing Officer was not entitled to grant a deduction on the basis of a letter requesting an amendment to the return filed, the appellate authorities were entitled to consider the claim and to adjudicate the same. It was further observed by the Hon‘ble High Court that an assessee is entitled to raise additional grounds not merely in terms of legal submissions, but also additional claims to wit claims not made in the return filed by it. The Hon‘ble High Court while concluding as hereinabove, had observed, that the error in not claiming the deduction in the return of income was inadvertent and could not be inter alia faulted, as there was nothing on record that would suggest that the omission on the part of the assessee as regards raising of the correct claim of deduction u/s 43B was deliberate, mala-fide or otherwise. Accordingly, the Hon‘ble High Court observing that the omission was inadvertent upheld the order of the Tribunal that had allowed the assessee‘s claim of deduction. Insofar the judgment of the Hon’ble Supreme Court in the case of Goetze (India) Limited v. Commissioner of BNP Paribas India Holding P. Ltd. Vs. ACIT- 14(1)(1), Mumbai. 17 A.Y 2017-18 – Income-tax (2006) 284 ITR 323 (SC) was concerned, the Hon‘ble High court in its aforesaid order had observed, that even if a claim is not made before the assessing officer, it can be made before the appellate authorities. As regards the jurisdiction of the appellate authorities to entertain a claim that was not raised by the assessee in its return of income, the Hon‘ble High Court after referring to the judgment of the Hon‘ble Supreme Court in the case of Goetze (India) Limited (supra), had made it clear that the issue in the case before the Hon‘ble Apex Court was limited to the power of the assessing authority in entertaining a fresh claim raised by an assessee otherwise than by filing of a revised return of income, and the same did not impinge on the powers of the Tribunal. In the case before the Full Bench of the Hon’ble High Court of Bombay in Ahmedabad Electricity Limited v. Commissioner of Income-tax, (1993) 199 ITR 351 (Bom)(FB), the assessee had not claimed deduction in respect of the amounts it was required to transfer to contingencies reserve and dividend and tariff reserve either before the Income Tax Officer or before the Appellate Assistant Commissioner. On further appeal, the assessee raised a new claim and additional grounds before the Tribunal, which however declined to admit the same. On further appeal, the full bench of the Hon‘ble High Court observed, that the Tribunal had jurisdiction to permit additional grounds to be raised before it even though these may not arise from the order of AAC so long as these grounds are in respect of the subject- matter of the entire tax proceedings. While concluding as hereinabove, it was observed by the Hon‘ble High court that unlike an ordinary appeal, the basic purpose of a tax appeal is to ascertain the correct tax liability of an assessee in accordance with law. Further, support is drawn from the judgment of the Hon’ble High Court of Bombay in the case of CIT Vs. Prabhu Steel Industries Pvt. Ltd.(1988) 171 ITR 530 (Bom). In the case before the Hon‘ble Jurisdictional High Court, the ITO had rejected the assessee's claim for deduction under s. 80J, inter alia, on the ground that the assessee had not claimed it in its return of income. On appeal, the AAC held that since the claim was made by the assessee during the BNP Paribas India Holding P. Ltd. Vs. ACIT- 14(1)(1), Mumbai. 18 A.Y 2017-18 – ITO should not have rejected it. On further appeal by the revenue, the Tribunal held that the AAC was fully justified in entertaining the claim for deduction under Sec. 80J because the claim was made by the assessee before the assessment was completed, i.e., during the assessment proceedings. On further appeal by the revenue, the Hon‘ble High Court while upholding the view taken by the AAC and the Tribunal observed, that as the claim for deduction was raised by the assessee in the course of the assessment proceedings, the ITO was obliged to entertain it and consider the same on merits. In the case before the Hon’ble High Court of Madhya Pradesh in the case of Steel Ingots (P) Ltd. Vs. CIT (1996) 86 Taxman 440 (MP), the High Court while setting aside the order of the Tribunal which had declined to consider the grounds raised by the assessee on the linchpin that the same were not raised before the CIT(A) and had dismissed the appeal observed, that though the question was not raised by the assessee before the first appellate authority, but then, the question was one of law and had material bearing on the order of assessment. It was observed by the Hon‘ble High Court that as the eventual destination of every litigation is justice, therefore, technicality should not be permitted to prevail as speed breaker in the course of dispensation of justice.

11. On the basis of the aforesaid judicial pronouncements, we are of the considered view, that in the case before us the CIT(A) was not justified in declining to consider the assessee‘s claim that as the ―Provision for diminution in the value of Investments‖ of Rs. 81,72,24,557/- was disallowed/added back by the assessee while computing its income for the year in which it was created i.e A.Y 2013-14, the same thus could not have been included in its income for the year in question i.e A.Y 2017-18 in which it was reversed. As observed by us hereinabove, we are of a strong conviction that as no deduction for the aforesaid provision was claimed by the assessee while computing its income for the year in which it was created i.e A.Y 2013-14, the inclusion of the same on its reversal in BNP Paribas India Holding P. Ltd. Vs. ACIT- 14(1)(1), Mumbai. 19 A.Y 2017-18 – the books of account during the year in question i.e A.Y 2017-18 would undoubtedly lead to a double taxation in its hands. Such extraction of tax from an assessee without the authority of law is prohibited as per Article 265 of the Constitution of India. Our aforesaid view is fortified by the judgment of the “Constitutional bench” of the Hon’ble Supreme Court in the case of Commissioner of Customs (Imports), Mumbai Vs. M/s Dilip Kumar and Company & Ors. [Civil Appeal No. 3327 of 2007; dated 30.07.2018, wherein the Hon‘ble Apex Court had observed that insofar the taxation statutes are concerned, Article 265 of the Constitution prohibits the State from extracting tax from the citizens without authority of law. Also, as observed by the ITAT, Rajkot Bench in the case of ACIT, Circle 1, Jamnagar Vs. Rupam Impex. (2016) 157 ITD 360 (Rajkot), tax cannot be levied on an assessee at a higher amount or at a higher rate merely because assessee, under a mistaken belief or due to an error had offered income for taxation at that amount or that rate. In fact, we find that the Hon’ble High Court of Bombay in the case of Dattatraya Gopal Bhotte Vs. CIT (1984) 150 ITR 460 (Bom), by referring to the CBR Circular No. 14 (XL-35) of 1955, has held, that the officers of the department must not take advantage of the ignorance of an assessee as to his rights, and are under an obligation to assist a taxpayer in every reasonable way, particularly in the matter of claiming and securing reliefs. It was observed by the Hon‘ble High Court, as under:

―The Central Board of Revenue, however, has issued a circular dated April 11, 1955, being Circular No. 14 (XL-35) of 1955. Under this circular it is stated as follows: "1 . ............ 2 . ............