TMI Blog2010 (5) TMI 703X X X X Extracts X X X X X X X X Extracts X X X X ..... Income-tax Appellate Tribunal in pursuance of an application filed by the assessee. The first and foremost ground raised by the assessee in this appeal is on a question of law which reads as under : "The learned Commissioner of Income-tax (Appeals) erred in upholding the order passed by the Assessing Officer which is bad in law and void ab initio. It is submitted that the provisions of section 147 are not applicable as there is no income which escaped assessment that has come to the Assessing Officer's notice subsequently, and therefore order passed should have been cancelled. Without prejudice it is submitted that the appellant has disclosed fully and truly all the material facts necessary for the assessment and the Assessing Officer ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... case for the immediately preceding assessment year 1987-88. In the said order dated February 16, 2010 passed in I. T. A. No. 7433/Mum/2002 and I. T. A. No. 169/Mum/ 2003, the Tribunal has considered the very same legal issue whether an income escaping assessment subsequent to the closure of proceedings under section 263 is justified or not. Relying on the judgment of the hon'ble Madras High Court in the case of CIT v. Ramachandra Hatcheries [2008] 305 ITR 117, the Tribunal held that in such circumstances, the Assessing Officer had no jurisdiction to issue notice under section 148 and thereafter to frame an assessment under section 147. Learned counsel heavily relied on the above order of the Tribunal and held that the decision being that of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ner of Income-tax. Learned senior standing counsel further argued that in proceedings under section 147, the Assessing Officer is very much concerned about the "escapement of income" having a direct nexus to the reasons recorded by him. On the other hand, in the case of revision provided under section 263, the nature of enquiry of the Commissioner of Income-tax is to find out whether the order is erroneous and prejudicial to the interests of the Revenue. Learned senior standing counsel, therefore, submitted that the jurisdiction of the Assessing Officer under section 147 does not cease to exist only for the reason that the Commissioner of Income-tax has initiated and thereafter dropped an action under section 263 prior to the issue of n ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ssed under section 263 which had become final unless and until the order was set aside by any process known to law. In the case of the earlier assessment year 1987-88 also, the facts and circumstances of the case were exactly similar. The Commissioner of Income-tax had issued notice under section 263 proposing revising of the assessment order on the basis of certain specific observations. On receipt of the notice, detailed reply was filed by the assessee. The Commissioner of Income-tax accepted those explanations and came to a conclusion that there was no justification in proceeding further. Accordingly, the proposed action under section 263 was dropped. Thereafter the Assessing Officer issued notice under section 148 proposing to reopen th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 87-88 and in the impugned appeal for the assessment year 1988-89, the assessee is the same, facts and circumstances are exactly similar and the grounds raised are again just the same. The co-ordinate Bench of the Tribunal has already held in favour of the assessee for the earlier assessment year 1987-88 relying on the judgment of the Madras High Court in the case of Ramachandra Hatcheries [2008] 305 ITR 117. When the co-ordinate Bench has already passed an order on an issue, we have to follow the said order of the co-ordinate Bench unless the facts are different or new questions of law have been raised or new materials have been placed. If the facts and circumstances are the same and the law considered the same and the materials placed befo ..... X X X X Extracts X X X X X X X X Extracts X X X X
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