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2019 (3) TMI 78 - ITAT DELHIRevision u/s 263 - capital gain arising to assessee under collaboration agreement - no change in income computed by assessing officer prior to initiation of 263 proceedings and post initiation of 263 proceedings - CIT found that order passed by AO u/s 143 (3) is erroneous and prejudicial to interest of revenue - original order passed by AO has been carried forward by assessee before learned CIT (A) who has also passed an order - Merging of AO's order with CIT (A) - HELD THAT:- Whatever has been considered and decided in appeal by appellate authorities, such matters cannot be subject to revision under section 263 of income tax act. Rationale behind exclusion of such orders from purview of section 263 of act (revisionary proceedings) is that, if CIT (A) decides issue against revenue, revenue has right to challenge it before higher appellate forum. Therefore, generally revenue cannot have dual power of revision as well as appeal on same issue, as generally they are mutually exclusive. In present case CIT has also passed an order under section 263 on issue of chargeability of income from house property and consideration of source of investment in mutual fund and bank deposit. On both cases income determined by learned assessing officer originally prior to order u/s 263 and assessment order under section 143 (3) of act pursuant to order under section 263 of income tax act is same. There is no change in income computed by assessing officer prior to initiation of 263 proceedings and post initiation of 263 proceedings. Hence, it is apparent that there is no error in order of AO. computation of capital gain by CIT - consideration received on sale of capital gain - appeal before learned CIT(A) - HELD THAT:- Issue of net sale consideration has already been decided by learned assessing officer and adjudicated by learned CIT (A), it is out of purview of provisions of section 263 of income tax act, since matter has already been considered and decided by appellate authority. There is no dispute on indexed cost of acquisition. Therefore, it is apparent that on computation of capital gain learned CIT was not correct in assuming jurisdiction under section 263 of act as matter was considered and decided by appellate authority. Therefore, on this ground also order of learned CIT passed under section 263 of income tax act is not sustainable.
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