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2015 (12) TMI 500 - AT - Income TaxRectification order u/s 154 - CIT X/Kol initiated proceedings u/s. 154 to rectify the order u/s. 264 passed by his predecessor in office CIT X - CIT X held that on the date of passing the Order u/s. 264 by the CIT X on 30,.12.2011, an appeal by the assessee was pending before the CIT(A) XVI - Held that:- The assessee for the relief under section 264 of the Act before Ld. CIT was accepted and the same was adjudicated, granting the relief to the assessee, but the same relief was rejected by passing an order under section 154 on the ground that the assessee for the same case has also filed an appeal to the Ld.CIT(A). The Ld.CIT also found that the appeal before Ld.CIT(A) was pending not only at the time of filing the application but also at the time of order under section 264 of the Act. The provisions of section 264(4)(c) of the Act prohibits the Ld. CIT to pass the revision order if appeal is pending. However it was also observed in terms of CBDT Circular that an order cannot be subject of an appeal if appeal has not been disposed on merits. In the present case, appeal of assessee has never been disposed on merits rather the appeal was withdrawn by the assessee vide later dated 9th December 2011. However the Ld. CIT(A) passed the order of the appeal dismissal on dated 03-09-2012, and by that time the application filed for relief to the Ld. CIT under section 264 of the Act was adjudicated and consequently the impugned rectification order u/s.154 of the Act was passed. The fact however remains that the appeal of the Assessee has not been disposed on merits. In view of this, there was no bar to the CIT in exercising jurisdiction u/s.264 of the Act. The facts clearly show that the embargo imposed in Sec.264 of the Act that there should be no appeal pending before CIT(A) on the issues raised in the application u/s.264 of the Act is not applicable in the present case. We are therefore of the view that the order u/s.154 of the Act is liable to be cancelled and the same is hereby cancelled. - Decided in favour of assessee
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