TMI Blog2017 (5) TMI 1034X X X X Extracts X X X X X X X X Extracts X X X X ..... the Ld.A.O is time barred and therefore requires to be quashed. Accordingly, we hereby quash the assessment order passed by the Ld.AO dated 28.01.2014. Since we have quashed the assessment order by holding it to be time barred, it is not necessary for us to adjudicate the merit of the case as it would be only academic. - Decided in favour of assessee. - I .T.A.No.1165/Mds/2016 - - - Dated:- 1-5-2017 - SHRI A.MOHAN ALANKAMONY, ACCOUNTANT MEMBER, AND SHRI DUVVURU RL REDDY, JUDICIAL MEMBER For The Appellant : Shri A.V. Sreekanth, JCIT For The Respondent : Shri N. Devanathan, Advocate ORDER Per A. Mohan Alankamony, AM:- This appeal by the Revenue is directed against the order passed by the learned Commissioner of I ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... is liable to be dismissed in limini, without Prejudice, 2. The Respondent, submits that the appeal filed by the revenue is not maintainable since the appeal has been filed mechanically without application of mind and judicial discretion has not been exercised judicially and judiciously, further the revenue ought to have followed in this regard the binding decision of the IT AT in the case of Sri Varadaraja Textiles reported in 119 ITD 469 (MAD) which tellingly pointed out as under:- Section 253(2) of the Act provides that the Commissioner may, if he objects to any order passed by the Commissioner (Appeals), direct the ITO to file an appeal to the Tribunal against the order. But, this does not mean that every order of the Commi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... merits and on limitation is unimpeachable and filing of appeal is bordering on harassment and abuse of process of court by the appellant. 4. The Respondent on the facts and circumstances is entitled to exemplary cost and the same be ordered. 5. The Respondent craves leave to file additional grounds. 4. The brief facts of the case are that the assessee is a private limited company carrying on multi-disciplinary research and development in Biotechnology, new chemical entities, novel drug delivery system and other allied areas for invention of new technology, concepts and products, manufacturing and production of acid free cleanings formulation and long lasting surface specialty coating. The assessee filed its return of income ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... which was passed on 6.11.2008 (F. Y. 2008-09). The order rectifying the same was therefore required to be passed by 31st March, 2013 being 4 years from the end of financial year in which the order sought to be amended was passed. As against the same, the order was passed by the AO on 28.1.2014, clearly beyond time prescribed u/s 154. However, the AO has not either controverted or confirmed the same in the report dated 27.11.2015. Issue No.2: There is no mistake apparent from the record. 12. In order to examine as to whether there was mistake apparent from record it will serve useful purpose to refer to the reasons recorded by the AO for proceedings u/s 154 which are extracted in para 4 above as also the order passed by the AO u/ ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e of the power of a High Court under article 226 of the Constitution ruled that an error which has to be established by a long drawn process of reasoning on points where there may conceivably be two opinions cannot be said to be an error apparent on the face of the record. A decision on a debatable point of law is not a mistake apparent from the record; reference is invited to the ratio in Sidhramappa Andannappa Manvi v. Commissioner of Income-tax [1952121 ITR 333 (Bom.). 14. In view of the above, I am of the considered view that the matter under consideration of the AO was beyond the scope of s.154 and as such, the order of the AO for such reasons cannot be upheld as being permissible within the scope of this provision. This ground o ..... X X X X Extracts X X X X X X X X Extracts X X X X
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