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TMI Blog2012 (2) TMI 210X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 CIT, the AO did not notice the anomaly in computation of book profit u/s.115JB of the Income tax Act which according to the law should have been inclusive of profit on sale of investment. 2.2 The CIT observed that the AO subsequently went on to complete the regular assessment u/s.143(3) on 28.3.2006 wherein the total income of Rs.17,00,33,720/- was determined under normal provisions of the Income tax Act. Therefore, the AO did not considered it necessary to prepare a computation of income under section 115JB of the Income tax Act. Further, rectifications to the assessment order were carried out u/s.154 on 08.06.2006 and 16.03.2007 determining the total income of Rs.15.43 crores and Rs.15.56 crores respectively ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 ACIT 2(3) vide her order u/s.143(3) of the Act, dated 28.3.2006, levied tax on the company as per the normal provisions of the Act after making certain additions to the returned income. Therefore, the computation of book profits u/s 115JB of the Act as returned by the company attained finality with the passing of the order u/s.143(3) of the Act on 28.3.2006 d) Further, as per the orders u/s.154 of the Act dated 8.6.2006 and 16.3.2007, the company was taxed under the normal provisions of the Act. e) Also, as per the order giving effect to CIT's order dated 24.4.2007, the company was taxed as per the normal provisions of the Act." 3.3 However, the CIT rejected the above contentions of the assessee. According to him, th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... missed 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 course of rectification proceedings on 10.04.2006 (a copy of which is placed at paper book page nos. 20 and 21) he drew the attention of the Bench to Clause 5 of the said letter which reads as under :- "5. Income under Section 115JB Of the Income Tax Act, 1961 - Computation of the Minimum Alternative Tax (MAT) u/s.115JB of the Income Tax Act, 1961 had not been worked out in the assessment order. Vide Schedule I (Page No.14) to the return of income, the company had worked out Book Profits of `.37,39,31,357/- on which tax and surcharge thereon @ 7.875% (7.5% + 5% surcharge), i.e. Rs.2,94,47,094/- would be the tax payable u/s.115JB of the Income Tax Act, 1961. We would request you to work out the income/tax thereon u/s.115JB ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... erely 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 limitation has expired, the CIT cannot revise the original order of the AO beyond the period of limitation. Since in the instant case, the order passed u/s.143(3) is dated 28.03.2006, therefore, the period of limitation being 2 years from the date of the order of the AO expires on 31.03.2008. Since the notices issued by the CIT u/s.263 are 17.11.2009 and 01.02.2010, therefore, the notices issued u/s. 263 are clearly beyond the period of limitation. Therefore, the revision order of the CIT is bared by limitation. 7.2 The Hon'ble Supreme Court in the case of CIT vs. Alagendran Finance Ltd. (supra) has held that Explanation (c) appended to subsection (1) of section 263 of the I.T. Act which deals with the power of the Commissioner in re ..... X X X X Extracts X X X X X X X X Extracts X X X X
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