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2016 (7) TMI 619 - AT - Income TaxEntitlement to exemption u/s 11 - AO denied exemption u/s 11 on the ground that there was violation by the assessee of the provision of section 13(1)(c ) and section 13(2)(g) - maintainability of the application of the Assessee before the DIT(E) u/s.264 - whether here was no power under the Act under which an assessee can withdraw an appeal filed before CIT(A)? - Held that:- The CIT considered the petition u/s 264 of the Act and passed an order dated 28.11.2011. At the time of hearing before CIT(A), Jalpaiguri on 10.01.2013 the assessee again brought to the notice of the CIT(A) of the facts with regard to the petition u/s 264 of the Act and the order passed by CIT u/s 264 of the Act. The CIT was also informed that pursuant to the order u/s 264 of the Act the AO has also passed an order giving effect dated 29.12.2011. The CIT(A)-XIV, Kolkata, if he had desired to exercise his powers of enhancement ought to have informed the Assessee that he wishes to exercise powers of enhancement and therefore the request for withdrawal of the appeal would not be acceded to. This is because the period of limitation for filing an application for revision u/s.264 of the Act in terms of Sec.264(3) is one year from the date on which the order sought to be revised was communicated to the Assessee. The order of assessment in the present case was passed on 29.12.2010. The period of limitation would therefore end by 29.12.2010. In the given circumstances, the CIT(A) could not have question the maintainability of the application of the Assessee before the DIT(E) u/s.264 of the Act. The effect of the order dated 28.11.2011 is that the order of the AO dated 29.12.2010, ceased to exist and got merged with the order of the DIT(E) passed u/s.264 of the Act. On the date when CIT(A) came to decide the appeals the orders of assessee has already been revised by CIT u/s 264 of the Act and thereby the appeal before CIT(A) were rendered incompetent. In the given facts and circumstances the CIT(A) ought not to have exercised his appellate jurisdiction on the appeal filed by the assessee. As we have already observed that when CIT(A) cannot question the jurisdiction of CIT u/s 264 of the Act on the ground that there was violation of the provision of section 264(4)(c) of the Act. We are of the view that in the light of the above conclusions the question whether the assessee can withdraw an appeal filed before CIT(A), becomes academic, since the appeal before CIT(A) itself was incompetent. We, therefore hold that the order passed by CIT(A) has to be cancelled as incompetent and superfluous, in view of the order of CIT u/s 264 of the Act. In view of the above conclusions the other contentions put forth before us are not taken into consideration. - Decided in favour of assessee.
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