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2020 (3) TMI 786 - AT - Income TaxDoctrine of Merger of an order - CIT(A) observed that the appeal has been merged with order of Revision passed by the CIT u/s 264 - Prohibition u/s 264(4) - HELD THAT:- DR before us at the time of hearing has not brought any iota of evidence suggesting that the appeal before the Ld. CIT(A) was not pending either at the time of filing the revisionary application or passing the revisionary order under section 264 of the Act. Thus as a matter of fact the appeal of the assessee was pending before the Ld. CIT(A) during the relevant time when the matter was decided by the Ld. CIT under section 264 of the Act. In the light of the above discussion the Ld. CIT under section 264 has exceeded his jurisdiction by passing the order which is not sustainable in the eyes of law. Coming to the facts of the case relied by the Ld. CIT (A) in his order in case of CIT Vs. Eurasia Publishing house (p) ltd. [1997 (10) TMI 53 - DELHI HIGH COURT] as decided that the order of the AO has been merged with the order of the Ld. CIT under section 264 of the Act. As such there was no question on the validity of the order passed by the Ld. CIT under section 264 of the Act. Thus the facts of the case referred by the Ld. CIT (A) in his order is distinguishable from the present facts of the case. Accordingly, in our humble and considered opinion the principles laid down by the Hon’ble Delhi High Court in the case of CIT Vs. Eurasia Publishing house (p) ltd (supra) are not applicable in the present facts of the case. Accordingly, we are not inclined to place our reliance on such judgment. Before parting, we also note that the assessee is a limited company and has the support of the professionals. Therefore it is not expected from such company to move the appeal before the learned CIT (A) and also make application for the revision under section 264 of the Act simultaneously which is unwanted under the provisions of law. Thus the question arises whether the assessee has done so intentionally or due to negligence. Whatever is the case, the assessee has acted negligently therefore in our considered view some cost should be imposed upon the assessee. Accordingly we direct the assessee to deposit a sum of ₹40,000 to the income tax office before the commencement of the proceedings before the learned CIT (A) for its negligent approached. We set aside the finding of the Ld. CIT(A) and direct him to admit the appeal filed by the assessee and decide the issue afresh as per the provisions of law on merit.
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