2015 (8) TMI 1442 - AT - Income Tax

Revision u/s 263 - scope of revision - fresh proceedings under section 143(3) - Held that - When the order passed by the AO under section 143(3) is set aside by the Ld. CIT by exercising the power under section 263 with a direction to the AO to re-do the assessment afresh the scope of such set aside proceedings is limited to the issues directed to be considered by the Ld. CIT in his order under section 263. AO thus is required to consider in the fresh proceedings under section 143(3) read with section 263 only such issues over and above the issues already considered in the original assessment which continues to subsist to the extent of income as determined by the AO in the original assessment. Since the appeal filed by the assessee before the Ld. CIT(A) against the order originally passed by the AO under section 143(3) was in respect of its grievance as arising from the income determined in the said assessment the same in our opinion had not become infructuous as a result of order passed by the CIT u/d 263 and the Ld. CIT(A) ought to have disposed of the same on merit. - set aside the impugned order of the Ld. CIT(A) and remit the matter back to him with a direction to dispose of the appeal of the assessee filed against the order of the AO dated 31.12.2010 passed under section 143(3) on merit after giving the assessee a proper and sufficient opportunity of being heard - Appeal of the assessee is treated as allowed.

Summary

Issues involved:
1. Appeal against the order of Ld. CIT(A)-VI, Hyderabad dated 23.08.2013 dismissing the appeal filed by the assessee against the order passed by the AO under section 143(3) dated 31.12.2010.
2. Scope of set aside proceedings under section 263 by Ld. CIT and the requirement for the AO to re-do the assessment afresh.
3. Determination of whether the appeal filed by the assessee before Ld. CIT(A) had become infructuous due to the order passed by Ld. CIT under section 263.
4. Tribunal's decision to set aside the order passed by Ld. CIT under section 263 and restore the order passed by the AO under section 143(3) on 31.12.2010.

Analysis:
1. The appeal was filed against the order of Ld. CIT(A)-VI, Hyderabad, which dismissed the appeal filed by the assessee against the order passed by the AO under section 143(3) dated 31.12.2010. The Ld. CIT had set aside the AO's order under section 263, directing the AO to re-do the assessment afresh. The appeal was considered to be in respect of the income determined in the original assessment.

2. The Tribunal noted that the scope of set aside proceedings under section 263 is limited to the issues directed to be considered by the Ld. CIT. The AO is required to consider only such issues over and above the ones already considered in the original assessment. The appeal filed by the assessee was based on the income determined in the original assessment, which continued to subsist. Therefore, the appeal was not deemed infructuous due to the Ld. CIT's order under section 263.

3. The Tribunal further highlighted that the Ld. CIT's order under section 263, dated 28.03.2013, was set aside by the Tribunal in a separate order dated 28.08.2015. This action restored the order passed by the AO under section 143(3) on 31.12.2010. Consequently, the appeal filed by the assessee before the Ld. CIT(A) against the AO's order needed to be considered on merit by the Ld. CIT(A).

4. In conclusion, the Tribunal set aside the impugned order of the Ld. CIT(A) and remitted the matter back to him. The Ld. CIT(A) was directed to dispose of the appeal filed by the assessee against the order of the AO dated 31.12.2010 passed under section 143(3) on merit, ensuring the assessee is given a proper and sufficient opportunity of being heard. The appeal of the assessee was treated as allowed, with the order pronounced in the open Court on 31.08.2015.