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2011 (6) TMI 815 - AT - Income TaxRevision Powers of Commissioner u/s 263 on Grounds other than the grounds of Revision Proceedings set out in the show cause notice - Assesse claim u/s 80IA was allowed in the course of the scrutiny assessment proceedings u/s 143(3) in 2001, learned Commissioner, in 2010, required the assesse to show cause as to why the assessment order so allowing the claim not be subjected to revision u/s 263 HELD THAT:- We find that the impugned revision order is indeed not sustainable in law. A plain reading of the impugned revision order clearly shows that the conclusion drawn in the revision proceedings are different from the reasons for revision proceedings set out in the show cause notice extracts from which are set out in the revision order itself. It is important to note the shifting stand of the Commissioner so far as reasons for subjecting the assessment order to revision proceedings. In the show cause notice, the learned Commissioner was of the view that deduction under section 80IA was “ not allowable since steam is a transient product does not have any shelf life”. This plea about lack of shelf life of steam did not find mention in the revision order, but in the impugned revision order, learned Commissioner notes that that “as the cost of production of steam equals the sales value, no profit can be attributed to the transaction” and that “thus the deduction under section 80IA resulted in the assessment being erroneous and prejudicial to the interest of the revenue”. However, by the time, learned Commissioner reached the operative portion of the revision order, he entirely abandoned these grounds about inadmissibility of claim of deduction under section 80IA on merits, and set aside the assessment order on the ground that AO had not made proper enquiries “in the present case, the Assessing Officer failed to make proper enquiries for making such deduction. It is thus clear that there has been a shift in the stand of the Commissioner on whether it was a fit case for revision on the ground that the assessee was not eligible for deduction under section 80IA in respect of notional sale of steam or whether it was a case for revision on the ground that the Assessing Officer did not make necessary verifications about the claim made by the assessee. The reason given in the show cause notice is former, while the reason for which revision powers are finally exercised in the impugned order are latter. Even with regard to the reasons of ineligibility of deduction under section 80IA in respect of notional sale of steam, the reasons are different at the notice stage and at the time of the impugned order, but all that ceases to be relevant because the ground on which the assessment is finally set aside is that “the Assessing Officer failed to make proper enquiries”. The reasons for which impugned assessment is set aside is thus entirely different from the reasons which were set out in the show cause notice. In the case of Synergy Enterprises Solutions Pvt Ltd Vs DCIT (ITA No 2076/Mum/2010), identical issues were dealt with where following the decision in the judgement of MAXPAK INVESTMENT LIMITED. VERSUS ASSISTANT COMMISSIONER OF INCOME-TAX. [2006 (4) TMI 199 - ITAT DELHI-F] was followed, it was held that "CIT has not mentioned the ground on which action is proposed to be taken under section 263 in the show-cause notice, it is deemed that he was not satisfied that it was a fit ground for taking action under the section, with the result that the final order, if based on the ground which he had earlier considered not fit for taking action under the section, will have to be set aside as not based on any ground which may justify his belief that the order passed by the Assessing Officer was erroneous insofar as it is prejudicial to the interests of the Revenue." It is therefore, held that, Once we come to the conclusion that the impugned order is null and void, it is not for us to advise the Commissioner as to what should he do. He is always at liberty to do whatever action he can take in accordance with the law, but we cannot give life to a null and void order by remitting it back to the learned Commissioner for giving an opportunity of passing the fresh order after giving the assessee an opportunity of hearing. In case, it is possible for the Commissioner to pass a fresh order at this stage, in accordance with the scheme of the Act, he can very well do so, but in case the time limit for passing such order has already expired, we cannot extend the same by directing him to pass the order afresh after giving an opportunity of hearing to the assessee.
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