TMI Blog2004 (6) TMI 258X X X X Extracts X X X X X X X X Extracts X X X X ..... , the learned Commissioner will not be expected to give direction to the assessing authority to enhance the assessment if the Assessing Officer himself has no power to do it. It is also the case of the assessee that the direction given to the assessing authority to enhance the assessment ex facie inappropriate and against the provisions of the law and also against the spirit of the Circular No. 11 of 2001 issued by the Central Board of Direct Taxes. 3. In this case, the assessee filed the return on 30-10-2000 declaring the total income at Rs. 1,11,380, which was processed under section 143(1) of the Act, on 27-12-2001. The assessee is a partner in M/s. Kandankulathy Copra Centre and the share income from the said firm is exempt under sect ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ssessing Officer to redo the assessment to bring to tax the incomes which have escaped assessment. The case was posted for hearing on 1-3-2004. Though there was no representation on behalf of the assessee, the assessee filed written explanation. The learned Commissioner rejected the explanation offered by the assessee, observing as under:- "Regarding the assessee's contentions on the claim of deduction of Rs. 70,763 in respect of interest paid to various persons for earning the share of profit from M/s. Kandankulathy Copra Centre that the same is proper and also as the proviso to section 14A of the Act prohibits recourse to action under section 147/154 of the Act to reassess such income prior to assessment year 2001-02 it is to be mention ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... lation to income not includible in the total income. Section introduced with retrospective effect makes it clear that while computing taxable income of an assessee, no deduction should be allowed in respect of any expenditure incurred by the assessee in relation to an income which does not form part of the total income under the Income-tax Act, 1961. Immediately, thereafter the Board issued a Circular bearing No. 11 of 2001 dated July 23,2001 which is available at ITR 250 (84) Statute. It restricts the power of reopening of completed assessment on account of the newly introduced provisions of section 14A which will have far reaching consequences and unsettled the cases which has become final. Para 4 of this Circular takes away the power of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... supply, main and emergency staircases, garden, general lighting, in the common facilities in and around the building, provision of free car park, provision of generated power for common amenities, salary paid to car park attendant, lift operator, watchman, sweeper, full time electrician and plumber for attending to common amenities and facilities, painting and polishing the building and fixtures belonging to the lessor once in three years, free water supply etc. i.e., total of Rs. 20,000 (Twenty Thousand only) per month payable monthly. In the event the term hereby created being terminated as provided by these presents, the Government of India shall pay only a proportionate part of the rent for the fraction of the current month up to the da ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e and the CAT, Ernakulam Bench and also the judgments of the Hon'ble Supreme Court and High Courts in support of assessee's case. In the computation, it is seen that an amount of Rs. 50,372 was claimed by the assessee as exempt under section 10(2A) of the Act, being interest paid to Irinjalakuda Co-operative Bank, Irinjalakuda, Rs. 38,089, Lord Krishna Bank, Irinjalakuda, Rs. 1,363 and Kandamkulathy Copra Centre Rs. 10,920. According to the Commissioner these are the amounts spent by the assessee to earn the exempted income under section 10(2A) and therefore, the assessee cannot claim it as a deduction against the taxable income. This is because of the newly introduced section 14A which came into statute book with effect from 1-4-1962. The ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he interest of revenue. If the order is not erroneous, even if it is prejudicial to the interest of revenue, the Commissioner has no revisionary power. If the Assessing Officer has no jurisdiction to pass an order, it is not an order at all. It is null and void. In the instant case it is very clear that on the basis of the policy decision taken by the Board, the Assessing Officer's power is taken away to reopen the assessment under section 147. If the Assessing Officer has no power, the Commissioner also has no power. 10. Again the order was passed by the Commissioner invoking the jurisdiction invested in him under section 263 on 8-3-2004. At the time of passing the order the proviso was already in the statute book. Section 14A reads as u ..... X X X X Extracts X X X X X X X X Extracts X X X X
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