JCIT(OSD), CIRCLE -10(1), DELHI vs. M/S INDIAN INFRASTRUCTURE FINANCE COMPANY LIMITED, DELHI

The assessee went in appeal before the Id. CIT(A) against the said rectification order of the Assessing Officer. After considering the facts and circumstances of the case, the ld. CIT(A) held as under: Page 2 of The JCIT V/s India Infrastructure Finance "7.1 The appellant has submitted that it has made claim of deduction u/s. 36(1)(viia)(c) and 36(1)(viii) as per the decision of the jurisdictional ITAT of Delhi in the case of Tourism Finance Corpn. Of India Ltd.

ITR (TRIB.) 1 (Delhi). The appellant has submitted the computation of deductions made by it which is already reproduced in the submission of the appellant and the same is again reproduced as under:- "However your honour, vide the abovementioned Notice, it has been alleged that the deduction u/s 36(1)(viia)(c) of the Act to the tune of Rs. 43,08,54,038/- has been computed on the total income before making deduction u/s 36(1)(viii) of the Act, the same being against the provisions of section 36(1)(viia)(c) of the Act which stipulates calculation of total income for the purpose of the said section before making any deduction under the said clause and chapter VI-A only. Therefore, as a natural corollary, the total income so computed must be done so after taking into account the deduction claimed u/s 36(1)(viii) of the Act, if any. Pursuantly, your honour proposes to subtract the said deduction claimed u/s 36(1) (viii) of the Act and recompute the total income on which deduction u/s 36(1)(viia) (c) of the Act may be claimed, the same coming out to be Rs. 4298.81 lakhs. In this regards, it is submitted before your honour that the said allegation is factually incorrect and invalid on account of the fact that the amount claimed under the said section has been computed @ 5% of the total income arrived at after taking into account, the deduction u/s 36(1(viii) of the Act claimed during

Aggrieved, the Revenue is in appeal before us. The ld DR placed his reliance on the decision of ITAT Delhi in the case of Rural Electrification Corpn Ltd (2009) 34 SOT 159(Delhi).

Per contra, the ld AR relied on the CIT(A) order. The ld AR further argued that the issue of deduction u/s 36(1)(viii) and u/s. 36(1)(viia)(c) Page 4 of The JCIT V/s India Infrastructure Finance of the Act is highly debatable and beyond the scope of section 154 of the Act as the same is not mistake apparent from record.

We have heard the rival submissions and have perused the relevant material on record. We find that on the issue of deduction u/s 36(1) (viia)(c) and 36(1)(viii) of the Act, the Revenue has placed reliance on the decision of the co-ordinate bench in the case of Rural Electrification Corpn. Ltd. V. Additional Commissioner of Income- tax (supra) whereas the CIT(A) has followed Delhi ITAT in the case of Tourism Finance Corpn. Of India Ltd (supra). We are therefore of the considered view that the calculation of deduction u/s 36(1)(viia)(c) and 36(1)(viii) of the Act is an issue which is highly debatable and therefore the same cannot be categorized as a mistake apparent from record. We, therefore, hold that the calculation for disallowance of the deduction u/s 36(1)(viia)(c) and 36(1)(viii) of the Act, can not be resorted under the provision of section 154 of the Act. We accordingly direct the AO to delete the addition made on re-computation of allowable deduction u/s 36(1)(viia)(c) and 36(1)(viii) of the Act. Ground is dismissed.

In the result, the appeal of the Revenue is dismissed.

Date of dictation of Tribunal Order 2. Date on which the typed draft order is placed before the Dictating Member 3. Date on which the typed draft order is placed before the other Member [in case of DB] 4. Date on which the approved draft order comes to the Sr. P.S./P.S.

Date on which the fair Order is placed before the Dictating Member for sign 6. Date on which the fair order is placed before the other Member for sign [in case of DB] 7. Date on which the Order comes back to the Sr. P.S./P.S for uploading on ITAT website 8. Date of uploading, inf not, reason for not uploading 9. Date on which the file goes to the Bench Clerk 10. Date on which the file goes for Xerox 11. Date on which the file goes for endorsement 12. The date on which the file goes to the Superintendent for checking 13. Date on which the file goes to the Assistant Registrar for signature on the order 14. Date on which the file goes to the dispatch section for dispatch the Tribunal order 15. Date of Dispatch of the Order 16. Date on which the file goes to the Record Room after dispatch the order