TMI Blog2012 (2) TMI 210X X X X Extracts X X X X X X X X Extracts X X X X ..... by the CIT, Mumbai relating to Assessment Year 2003-04. 2. The assessee in the grounds of appeal has challenged the order of the CIT in assuming jurisdiction u/s.263 of the I.T. Act and also rejecting the contention of the assessee that profit on sale of investment to be deducted from the book profit for computation u/s. 115JB of the I.T. Act. 2.1 Facts of the case, in brief, are that the assessee filed its return of income on 28.10.2003. The working of income under section 115JB has been given at page no.14 of Schedule 1 of the said return of income which reflects book profit of Rs.37,39,31,357/-. The said amount of book profit has been determined by the assessee after reducing an amount of Rs.11,99,58,450/- on account of sale of investment, the proceeds of which was stated to have been invested as per section 54EC of the Income tax Act. The processing u/s 143(1) of the I.T. Act was carried out by the AO on 18.03.2005 determining the income at Rs.9,37,01,020/- under normal provisions of the Income tax Act. The assessee did not file an audit report with the return of income, which according to the CIT was required to be furnished in form no. 29B. Therefore, according to the C ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rred by limitation. 3.1 However, the CIT rejected the above contention of the assessee on the ground that in the notice dated 01.02.2010 it has been clearly brought out that the order u/s.143(3), rectification orders passed u/s.154 passed on various dates and order dated 24.04.2007 passed by the AO giving effect to the CIT(A) s order were erroneous. Therefore, the intended revision u/s.263 of the I.T. Act was against the last and final order of the AO dated 24.04.2007 vide which the AO had given effect to the order of the CIT(A). 3.2 The assessee also objected to proposed revision on various other grounds which the CIT reproduced in page no. 3 of the order and which are as under :- a) The return of income of the company was filed on 28.10.2003, wherein, as per Schedule 1 of the return of income Book profits u/s 115JB, full disclosure was made by it on the computation of Book profits for the purposes of section 115JB of the Act. b) As per the return of income, since the tax payable under the normal provisions was more than the tax payable u/s I15JB of the Act, the company paid tax as per the normal provisions of the Act. c) Assessment proceedings were initiated and the AC ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r the assessee made two fold arguments i.e. on technical ground as well as on merits to the proposition that the order passed by CIT u/s. 263 is not sustainable. Referring to the copy of the order of the Tribunal in assessee s own case for the Assessment Year 1998-99 (a copy of which is placed at paper book page nos. 38 to 47) he drew the attention of the bench to para 11 of the order of the Tribunal, wherein it has been held that capital gain could not be included in the computation of profit u/s.115JA and accordingly, the Tribunal had directed the AO to exclude the capital gain from the calculation of deemed profit u/s.115JA. He submitted that the appeal filed by the Revenue against the order of the Tribunal has been dismissed by the Jurisdictional High Court. Therefore, the order of the Tribunal has become final. He accordingly submitted that on merit alone the action of the CIT invoking jurisdiction u/s.263 of the Act should be held as voidab- initio. 5.1 He submitted that in the instant case, the tax under normal provision becomes more due to 54EC investment. Therefore, the provisions of section 115JB are not applicable. Referring to the letter addressed to the AO during the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... vs. Max India Ltd. reported in 295 ITR 282. 6. The Ld. DR, on the other hand, heavily relied on the order of the CIT 7. We have considered the rival arguments made by both the sides, perused the orders of the AO and the CIT and the paper book filed on behalf of the assessee. We have also considered the various decisions cited before us. In the instant case, there is no dispute to the fact that the AO had computed the profit under normal provisions of the Act which was more than the book profit computed by the assessee u/s.115JB. The AO in the order passed u/s.143(3) of the Act on 28.03.2006 has not discussed anything about the provision of section 115JB. Only in the order passed u/s.154 of the Act on 08.06.2006, the AO has merely mentioned about the minimum alternate tax u/s.115JB of the Act. However, in the order giving effect to CIT(A) s order dated 24.04.2007, we find no such relief or calculation u/s.115JB has been given. 7.1 It has been held by the Hon'ble Rajasthan High Court in the case of CIT vs. Hemraj Udyog (supra) that the Commissioner of Income Tax has power to revise the order of the AO on the issues which were not taken in appeal before the CIT. But if the limit ..... X X X X Extracts X X X X X X X X Extracts X X X X
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