Moreover the mistake which the assessee had committed should also be considered by the AO as a mistake .He should not have different opinion about the allowance of mistake. He should also had treated the mistake as mistake. The same should not be arguable under law.
Facts of the case: The assessee had filed its Return of income on 30-09-2008 declaring income of Rs 14,00,83,790/-. The assessee had buy-back the shares which were originally allotted to him at Re 1/ share at Rs 651 per share. The assessee originally computed the long term capital gain of Rs 2,37,17,342/-. Then it revised the long term capital gain to Rs 2,03,13,425/-treating the original computation as wrong by mistake which was not accepted by AO because it had not filed its revised return of income u/s 139(5).
Contention of the assessee: Assessee was of the view that it was not aware of the cost of acquisition of the buy-back shares so it had by mistake taken the wrong cost of acquisition at Re 1 instead of Rs 651/share. Further it was of the view that it was neither asking for the new deduction of any expense nor calling for any other claim to be allowed so it was just a mistake apparent from record for which revision of ROI u/s 139(5) was not necessary.
Moreover if the CIT(A) had the power to make the revision of income upwards then it should also do the revision downwards. So assessee’s contention should be allowed just by filling a correction paper with the AO.
Contention of the revenue: Revenue was of the view that as the assessee had not filed its revised return of income u/s 139(5)i.e with in the time limit of sec 139(5) so the assessee would not be allowed the benefit of revised capital gain because if the assessee wanted to revise its ROI the same could not be revised just by a request piece of paper before the AO as per the decision in Goetze (India) Ltd. Vs. CIT (2006) 157 Taxman 1 (SC) in which it was held that assessee’s re computation was not allowed without there being a revised return.
Held by ITAT: ITAT held that as the assessee was not claiming any fresh deduction or expense for which revision of return of income was necessary, it was only a correction in the computation of income so the case of Goetze (India) Ltd. Vs. CIT (2006) 157 Taxman 1 (SC) would not apply. Moreover if the assessee would have shown lower capital gain by mistake then the AO would have increased the capital gain even if the return of income was not revised u/s 139(5) In the same way, in this case also as the assessee had shown higher capital gain so the AO should had considered the correction letter from assessee and accepted the corrected capital gain.
So the appeal of revenue would be dismissed.