SARKAR TALWAR,FARIDABAD vs. ITO, WARD-2(3), FARIDABAD

None appeared on behalf of the assessee despite service of notice; therefore, we are proceeding to decide the appeal on material placed on record and the submissions made by the learned DR.

The facts in brief are that the assessee is an individual who has filed his return of income on 25.07.2013 declaring income of Rs.38,90,060/- and such a return was duly processed u/s 143(1). Later on, assessee filed an application u/s.154 before the Assessing Officer stating that due to bonafide mistake sum of Rs.30 lacs received as award from BCCI (Board of Cricket Control of India), which otherwise was exempt u/s.10(17A) of the Act and also clarified by the CBDT vide Circular no.2/2014, was by mistake shown as taxable income. The Assessing Officer rejected the claim of the assessee vide order dated 31.01.2017, on the ground that it is not a mistake apparent from record within the scope of section 154, on the ground that, since assessee has himself shown the receipts from the BCCI as taxable in his ITR filed, therefore, such a mistake cannot be rectified u/s.154.

Ld. CIT (A) too has rejected the assessee’s appeal on the ground that such a request made by the assessee to exclude sum of Rs.30 lac from the taxable income is beyond the scope and ambit of Section 154. After detailed discussion on the scope of Section 154 and relying upon various judgments, he has held that assessee has failed to give a justification in its application u/s.154, that there is a mistake apparent from record. He has further held that here it is a debatable issue, because assessee has first shown it as a taxable income and then has claimed to be exempted from tax. Thus, on this ground also such a claim cannot be maintained.

After hearing the learned Department Representative and on perusal of the impugned order, we find that the assessee’s application u/s.154 has been rejected on the ground that amount of Rs.30 lac received from BCCI has been shown as a taxable income. Once, it is brought to the notice of the Assessing Officer that income shown in the return of income is not in accordance with law and such an income cannot be taxed under the Income Tax Act or is entitled for exemption, then there cannot be estoppel against the assessee to claim it as exempt and Assessing Officer cannot reject the same simply because assessee had shown it in the return of income. It is a well settled law that tax can be levied under the express provision of law and if any deduction or exemption is allowable to the assessee in law, then it is the duty upon the Assessing Officer to compute the income and allow such deduction under such express provision of the law. If the assessee claims that such an income is exempted u/s. 10(17A) which is duly supported by CBDT Circular which is binding on the Revenue Authorities, then the same needs to be exempted and allowed in accordance with law. Accordingly, we remit the matter back to the file of the Assessing Officer to examine the assessee’s claim in light of provisions of law and if such a claim is allowable in view of the CBDT Circular No.2 of 2014 r.w.s. 10(17A), then same should be allowed. Accordingly, appeal of the assessee is partly allowed for statistical purposes.

In the result, the appeal of the assessee is partly allowed for statistical purposes. Order pronounced in the open Court on 23rd October, 2018.