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2007 (1) TMI 184 - SC - Income TaxWhether on the facts and in the circumstance of the case, the hon'ble Income-tax Appellate Tribunal was justified in law in holding that the Commissioner of Income-tax lacked jurisdiction to revise the order of assessment under section 263 of the Income-tax Act? Whether on the facts and in the circumstances of the case, the hon'ble Income-tax Appellate Tribunal was justified in holding that the issue of excess deduction under sections 80HH and 80-I contained in the order under section 143(3) was merged with the order under section 154 particularly when no rectification under section 154 was made in this regard? Whether the view taken by the hon'ble Income-tax Appellate Tribunal that the Assessing Officer did not consider the issue of excess deductions under sections 80HH and 80-I for rectification in his order under section 154 after due application of his mind, could in law justify its conclusion that there was no jurisdiction under section 263 in respect of the said issue in terms of the assessment order dated March 10, 1995? Held that:- Initiation of a proceeding under section 263 of the Act cannot be held to have become bad in law only because an order of rectification was passed. No such hard and fast rule can, in our opinion, be laid down. Each case is required to be considered on its own facts. In a given situation, the High Court may be held to be entitled to set aside both orders and remit the matter for consideration of the matter afresh. But in our opinion, it would not be correct to contend that only because a proceeding for rectification was initiated subsequently, the revisional jurisdiction could not have been invoked under any circumstances whatsoever. If such a proceeding was initiated, in our opinion, the contesting parties could bring the same to the notice of the Commissioner so as to enable him to take into consideration the subsequent events also. It goes without saying that if and when the Commissioner of Income-tax takes up for consideration a subsequent event, the assessee would be entitled to make its submission also in regard thereto. For the reasons aforementioned, the impugned judgment cannot be sustained. It is set aside accordingly. Our attention has been drawn to the fact that the Assessing Officer had allegedly taken into consideration the application of sections 80HH and 80-I of the Act. In our opinion, therefore, the interest of justice would be met if the Commissioner of Income-tax is directed to have a fresh look at the matter in the light of the order of rectification passed by the assessing authority. Appeal allowed.
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