TMI Blog2015 (6) TMI 606X X X X Extracts X X X X X X X X Extracts X X X X ..... ew that the AO has correctly gave appeal effect in favour of the assessee u/s. 11 to 13 because the assessee got registration u/s. 12AA of the IT Act as per directions of the Tribunal. Therefore, there is no error in ITNS 150 to be revised u/s. 263 of the IT Act. Thus, the ld.CIT has acted without jurisdiction in the matter. We accordingly set aside the impugned order u/s. 263 for all the assessment years under appeals and quash the same. - Decided in favour of assessee. - ITA No. 360 to 364/Alld./2014 - - - Dated:- 29-8-2014 - SHRI BHAVNESH SAINI AND SHRI B.C. MEENA, JJ. For The Appellant : Shri S.D. Singh, Sr. Advocate For The Respondent : Shri R.K. Lachhiramka, CIT/DR ORDER Per Bhavnesh Saini, J.M.: All the above appeals by the assessee are directed against the common order of ld.CIT, Allahabad dated 25.03.2014 for the assessment years 2001-02 to 2005-06 u/s. 263 of the IT Act. 2. We have heard the ld. Representatives of both the parties. Both the parties argued in ITA No. 362/Alld./2014 for the assessment year 2003-04 and submitted that the issue is similar in all the appeals. Therefore, for the purpose of disposal of all the appeals, the material ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sions of Section 11 and 13 of the IT Act. This non application of mind by the AO has rendered such orders erroneous in so far as they are prejudicial to the interest of revenue. In this view of the matter, I hereby provide you an opportunity to explain/clarify as to why the aforesaid orders of the A.O. (at item no.V/VI} be not revised u/s 263 of the IT Act. The date and time for compliance is 3rd December, 2013 at 11.00 am. (Raj Kumar Lachhiramka) Commissioner of Income tax, Allahabad 4. The assessee filed reply before the ld. CIT, which reads as under : 2. On 09.12.2013, Sri Sanjay Khanduja, FCA/A.R. attended. and filed a reply which reads as under: The Hon'ble Commissioner of Income-tax, Allahabad. Sub: The Board of Directors of the Allahabad Agricultural Institute, Allahabad - Notice us 263 - Assessment Years 2001-02, 2002- 03, 2003-04, 2004-05, and 2005 06 - Reply Your Honor, Kindly refer to the notice no.F.No. CIT/ Alld/263/2013-14/1224 dated 21.11.2013 issued by your good-self u/s 263 for assessment years 2001-02, 2002-03, 2003-04, 2004-05 and 2005-06 issued to The Board of Director: the Allahabad Agricultural Institute, Allahabad to s ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 28.12.2010 Asstt. CIT-Shri S. Anbuselvam 4. 2004-05 143(3) 28.12.2010 Asstt. CIT-Shri S. Anbuselvam 5. 2005-06 143(3) 28.12.2010 Asstt. CIT-Shri S. Anbuselvam (1-4) While passing these assessment orders, despite the directions of the Hon'ble ITAT as reproduced in para (1-2) (supra), the A.O. did not allow the claim u/s 12A and imposed taxes without allowing the claim u/s 12A following the order of cancellation of registration of the Hon'ble CIT dated 08/03/2010 .. (1-5) During the assessment proceedings for all these years, it was vehemently argued, interalia, with regard to the registration cancellation as under- (a) the registration granted u/s 12A cannot be withdrawn u/s 12AA(3) before 01.06.201(1 since such power for cancellation was extended only from ~his date; arid (b) the cancellation proceedings affect the substantive rights and therefore only apply prospectively and not retrospectively. For these two arguments, many decisions were relied upon s ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ear 2007-2008, registration was granted in the assessment. The Hon ble CIT initiated proceedings in u/s 263 for the grant of registration in the assessment. These proceedings ere dropped in terms of order 27/007/2011 (copy enclosed as annexure 2 ) on the ground that since the registration was restored by the Hon'ble in ITAT in appeal no.113/(Alld)/2010 vide order dated 27/07/2011, the proceedings became infructuous. In the impugned years, the situation is completely the opposite. In 2007-08, the 263 proceedings were dropped on the registration being restored. In these years, the 263 proceedings are initiated on registration being restored on the demands being revised by allowing registration u/s 12A. Thus, there is a change of opinion. It is a settled principle that a change in opinion is not tenable in law. It is therefore prayed that the proceedings may kindly be dropped. (4-1) Para VII. of the captioned notice reads as under - It has been stated in the notice that it is a trite law that the mere Registration u/s 12A does not preclude the A.O. from examining the allowability of exemption u/s 11 of the I.T. Act. (emphasis supplied) The A.O. while revising the deman ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... g a fresh assessment. (5-2) it must be seen that the orders are both erroneous and prejudicial to the interest of the revenue. It has been held by the Hon'ble Alld High Court in the case or J.P. Srivastava Sons (Kanpur) Ltd. v. Commissioner of Income-tax [1978] 111 ITR 326 that - It must further be shown that the order was prejudicial to the interests of the revenue. The assessee has over-applied the income for each of these years after taking depreciation into consideration. The only year when this is not so is A. Y.2003-04. In view of the over application of income, how can it be said that the demand revisions passed are prejudicial to the interest of the revenue. Also, in trusts, the over-application of income of one year is judicially allowed to be set off against the subsequent years' underapplication of income. Thus, it cannot be said that the impugned demand revisions are prejudicial to the interest of the revenue. It is therefore prayed that the proceedings sought to be initiated u/s 263 may kindly be dropped. (6-1) Without prejudice to the above, the orders revised as per para V. of the notice have not been served and communicated on / to the assessee ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... pt in A.Y. 2003-04 wherein it was reduced from ₹ 5,15,81,970/- to ₹ 39,83,300/- and no speaking order was passed. Without prejudice to the above, ITNS 150 is only a sheet of calculation of income tax and may not be equated to an order as such. In any case, it has been stated that no speaking, order was passed. In fact no proceeding took place, in which the assessee was present, for passing any order in these impugned years wit regard to the revision of demand post the order of the Hon'ble ITAT restoring registration in June, 2011. Thus, no order was passed in the knowledge of the assessee which was in the nature of an order let alone a speaking order. It is therefore prayed that the proceedings may kindly be dropped as the assessee does not know which order is deemed to be revised u/s 263. (8-1) Without prejudice to the above, the demands revised on the basis of the order of the Hon'ble ITAT restoring registration pertain to the ones passed u/s 143(3) for these years on 28.12.2010. These orders are barred by limitation for the purposes of their revision u/s 263. It has been held in the case of Commissioner of Income-tax, Delhi - v. Bharti Airtel Ltd. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he preliminary objection of the assessee has been met out accordingly a fresh notice u/s 263 is being issued. On perusal of the case records of the aforesaid years, the following facts emerge:- II. That the assessment orders completed/ passed by the Assessing Officer for all the aforesaid years had been set aside by the Hon'ble ITAT (vide their order dated 24th April, 2009) directing the AD to decide the matter afresh. III. that the Ld. Commissioner of Income Tax, Allahabad cancelled the registration granted to the assessee u/s 12A vide his order dated. 08.03.2010. IV that in view of the order of the Ld Commissioner of Income Tax, Allahabad (cancelling the Registration granted to the assessee), the Assessing Officer passed orders for all these assessment years wherein he outrightly rejected the claim of the assessee u/s 11 of the I.T. Act, since there was no registration existing u/s 12A which is prerequisite for entertaining any claim u/s 11 of the Income Tax Act, and the income of the assessee for all the aforesaid years was assessed as per the normal provisions of the Income Tax Act. V that the hon ble ITAT (vide its order dated 21.06.2011) quashed the order ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... S. No. Asst. yr. Assessment section Date of Asst AO 1. 2001-02 147/143(3) 31.12.2007 Asstt. CIT-Smt. Belu Sinha 2. 2002-03 147/143(3) 31.12.2007 Asstt. CIT-Smt. Belu Sinha 3. 2003-04 147/143(3) 31.12.2007 Asstt. CIT-Smt. Belu Sinha 4. 2004-05 143(3) 26.12.2006 ITO-Shri Vipul Sinha 5. 2005-06 143(3) 31.12.2007 Asstt. CIT-Smt. Belu Sinha (1-2) Against the first appeals for all these years, the Hon'ble ITAT passed a consolidated order dated 24/04/2009 in ITA No.28(Alld)12009 of Assessment Year 2001-2002; I.T.A. No. 29 (Alld) 12009 of Assessment Year 2002-2003; I. T.A. No. 30 (Alld) 12009 of Assessment Year 2003-2004; I. T.A. No. 31 (Alld) 12009 of Assessment Year 2005-2006; I. T.A. No. 73 (All ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... chal). Also the decision of the Hon'ble Allahabad High Court had already been pronounced on 24th February 2010 in the case of Commissioner of Income-tax v. Manav Vikas Avam Sewa Sansthan. Thus, the reassessment proceedings were prejudicial to the interest of the assessee and in favour of the revenue. . (1-6) The appeal against the order of cancellation of the registration passed u/s 12AA(3) was allowed by the Hon'ble ITAT vide order dated 21.06.2011 wherein the registration granted originally u/s 12A on 16- 08-1975 withdrawn by the Hon'ble CIT vide order dated 08-03-2010 was restored. SUBMISSIONS (2-1) The Hon'ble CIT passed an order u/s 254 / 12AA(3) of the Income Tax Act, 1961 on 27-12-2011 (copy enclosed as annexure 1 ) holding as under Respectfully, following the ITAT s order in ITA No.113/(Alld)/2010 dated 21-06-2011 in the case, registration under section 12A is granted to the .society with retrospective effect. Registration was denied in the assessment / reassessment of these impugned years under assessment and taxes worked out. The Hon'ble ClT passed this order to direct the AO to grant registration with retrospective effect. This or ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ce to the above, the assessing officer has given appeal effect of the order of the ITAT in ITNS 150 to restore the registration, originally granted on 16-08-1975 for the society registered w.e.f. 25.09.1950 i.e. before the Income Tax Act of 1961, a precondition to allow claim u/s 11.. The return of each year is accompanied with the computation of income u/s 11 and 12 as annexed with the income tax return for each year accompanied by the audit report in form 10B. In the circumstances, allowability of exemption u/s. 11 of the I.T. Act can very easily be determined from the record of any of lese years The income can very easily be determined to see whether 85% has been applied on the objects and whether the accumulation is within the 15% as laid down under the Act. Also, whether the accumulation u/s 11(2) (which is not there in any year) is. duly supported by form 10 duly furnished before the completion of the assessment proceedings. It cannot be said that the AO has not applied her mind in giving the appeal effect as the record itself is sufficient for determination of income u/s 11. Thus, the reasons for which the revision of these appeal effects ore sought are self-explanatory as ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... instead of reassessment order, where subject matter of additions made in revision are not dealt with in reassessment. Thus, the order sought to be revised are time barred. It is therefore prayed that these proceedings u/s 263 may kinc1ly be dropped. (7-1) For the proceedings of section 261 to lie, all of the following conditions must be fulfilled - (a) there must be an order. (b) it must be communicated to the assessee before the initiation of the revision proceedings. (c) the order must be both erroneous and prejudicial to the interest of the revenue. (d) the proceedings must nut be barred by limitation. In the instant case, it is clear that the all the four legs essentials for initiation of proceedings u/s 263 are not being fulfilled. It is prayed that the assessee seeks to place more papers and written submissions in these proceedings. It is therefore prayed that three weeks may very kindly be provided to furnish the same. Yours Faithfully, sd/- San jay Khanduja (AR) 5. Thereafter, Sri Sanjay Khanduja, FCA attended on 30.01.2014 and filed a further reply which reads as under: To The Hon'ble Commissioner of Income-tax, Allahabad. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... stion was nil. (9-2) The assessments were framed as under on 28.12.2010 u/s 143(3)/254 after denying benefit of registration u/s 12A for the impugned years - ' Particulars A.Y. 2001-02 A.Y. 2002-03 A.Y. 2003-04 A.Y. 2004-05 A.Y. 2005-06 Income as disclosed Nil Nil Nil Nil Nil Gross receipts 5,52,52,919 8,37,41,099 19,41,49,106 32,72,61,085 48,10,52,399 Less : Expenses for purpose of the objects 4,66,29,625 6,67,77,119 14,69,75,740 25,10,55,354 36,79,12,648 Add : Expenses disallowed 29,62,933 35,56,761 44,08,599 77,34,092 74,64,819 Total income 1,15,86,230 2,05,20,740 5,15,81,970 8,39,39,820 12,06,04,5 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 2004-05 159/Asstt. CIT/R-II/All/2010-11 21.11.2013 2005-06 158/Assti. CIT/R-II/All/2010 11 21.11.2013 Copies of these orders are enclosed. (10-3) Speaking orders have been passed by the Ld. CIT(A) for all the impugned years. (10~4) it is judicially held that the powers of a CIT(A) are co-terminus and coextensive with that of the AG. (10-5) The Ld. CIT(A) has decided these appeals on the basis of the provisions of section 11 - 13 of the Income Tax Act, 1961. (10-6) The Ld. CIT(A) has examined the claims from the point of genuineness. He has also considered the expenses from the point of view whether these can be treated as application of income. (10-7) According to the theory of merger, the orders of assessment merge with appellate orders. As such tile assessment orders and the orders of 01/12/2011 sought to be revised do not survive as on date. The notice dated 11.12.2013 issued by your good self has become infructuous in view of the appellate orders dated 21st November, 2013. As such, the same may kindly be dropp ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... light of the provisions of section 11 to 13 of the IT Act. Findings of ld.CIT in the impugned order in para 6, 7 7,1 are reproduced as under : 6. The Ld. A.R. (through his written submissions) has raised certain objections in this regard. I discuss them one by one as under: i) One of the objections was that the orders (modifying the demands) of the A.O. which were sought to be revised u/s 263 were never served on the assessee. On verification of records, if could not be ascertained if such orders had indeed been served on the assessee. Therefore, the revisional proceedings were dropped on this technical ground alone and once the orders were duly served on the assessee, fresh revisional proceedings have been initiated. Accordingly, this objection of the assessee is duly addressed to. ii) Another objection of the assessee is that the notice u/s 263 of the I.T. Act was only a change of opinion, which was not tenable in law. In this regard, it is to be stated that as discussed in earlier paras, while passing the impugned orders (modifying the demands), the A.O. had not applied his mind at all to the provisions of sec. 11 to 13 of the Act. In absence of any such application ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ce) also the submissions made by the Ld. A.R. of the assessee, following facts emerge: (i) that the Hon ble ITAT vide its order dt. 24-04-2009 in ITA No. 28/29/30/31(Alld}/2009 ITA No 73(Alld}/2008 had set aside the orders of the A.O. (for all the Assessment Years under reference) remanded the same to the file of the A.O. for deciding the matter afresh in the light of discussion in the said order. (ii) that the A.O. while passing orders {for all the Assessment Years under reference} in pursuance to the Hon ble ITAT's order dated 24.04.2009 did not give benefit of the previsions of see. 11 of the I. T. Act since by that time the Registration of the Trust was cancelled by the Ld. CIT, Allahabad vide his order dated 08.03.2010. iii} In view of cancellation of the registration by the Ld. CIT Allahabad, while passing the said orders, the A.O. did not examine if the assessee had complied with the specific provisions of sec 11 to 13 of the I.T. Act, as it was not at all required. Subsequently, when the order of 'the Ld. CIT, Allahabad (cancelling the Registration u/s 11/12 of the I.T. Act 1961) was set aside by the Hon ble ITAT (vide its order dated 21.06.2011), the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... in his return. v) (The Hon'ble Jurisdictional Allahabad High Court in the case of Jagdish Kumar Gulati v/s CIT (2004) 269 ITR 71 (All), after considering various judicial pronouncements passed earlier, held that the absence of proper enquiry in a mater renders an order erroneous as well as prejudice to the interest of revenue. vi) Gee Vee Interprises 99 ITR 375 (Del) vii) K. A. Ramaswamy Chettiar 220 ITR 657 (Mad) viii} ClT v/s Jawahar Bhattacharjee 341 ITR 434 (Gauh) (FB) 7.1 In this view of the matter, I hereby annul the impugned orders (modifying the earlier demands) dated 01.12.2011 of the A.O. for all the foresaid years direct the A.O. to examine the whole issue afresh on the altar of the provisions of sec.11 to 13 of the I.T. Act. 8. We have considered the rival submissions and perused the material available on record. The ld. Counsel for the assessee filed a chart of chronological events for better understanding of the facts and issue. The same is reproduced as under : SI. No Dates Events 1. 16.8.1975 Appellant society was granted registration und ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ) a direction was issued to the assessing authority to make de novo assessments. (Asst. yr. 2003-04 pp. 24-44 of paper book) 9. 8.3.2010 While the assessment proceedings were thus pending, in remand, the CIT,-Allahabad, passed an order under s. 12AA(3) of the Act and cancelled the registration granted to the appellant under s. 12A of the Act. The appellant challenged the same before this Hon'ble Tribunal in IT Appeal No. 113 of 2010. (Asst. yr. 2003-04, pp. 45-49 of paper book) 10. 28.12.2010 Thereafter, vide assessment/reassessment orders for asst. yrs. 2001-02 to 2005-06 the appellant's assessing authority (acting upon remand made by this Hon'ble Tribunal), again disallowed the claim of exemption under s. 12A of the Act r/w ss. 11 and 12 of the Act, solely in view of the order passed by the CIT, Allahabad, dt. 8th March, 2010 under s. 12AA(3) of the Act. Thereafter, he proceeded to assess the appellant in the status of association of person as a business entity and verified the nature of quantum of expenses in relation to the activity of the appellant, namely, imp ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... CIT, Allahabad, has annulled the ITNS 150 (described by him as orders), all dt. 1.11.2011, for the asst. yrs. 2001-02 to 2005-06 and has directed the AO to examine the whole issue afresh on the after of the provision of ss. 11 to 13 of the Act. Hence, the present appeals. 9. It is contended on behalf of the assessee that ITNS 150 in reference dated 01.12.2011 is not an order to be revised u/s. 263 of the IT Act. The ld. Counsel for the assessee submitted that notice of demand u/s. 156 is not an order to be revised u/s. 263 of the IT Act. He has relied upon the decision of Madras High Court in the case of CIT vs. Suresh Gokul Das 229 ITR 721 and decision of Allahabad High Court in the case of CST vs. M/s. Dwarika Das Co., 1980 (Vol. 1) UPTC 123. The ld. DR, however, submitted that any order could be revised u/s. 263 of the IT Act and no specific Rule or provision is provided in the Act in this regard. ITNS 150 is an order. He has relied upon the decision of Hon ble Supreme Court in the case of Kalyankumar Ray vs. CIT, 191 ITR 634, in which it was held I.T.N.S. 150 is also a form of determination of tax payable and when it is signed or ini ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ny proceeding under this Act and any order . Hon ble Supreme Court in the case of Kalyankumar Ray (supra) held that ITNS 150 is form of determining the tax payable is certainly an order in writing within the meaning of section 143(3). Therefore, ITNS 150 being part of the assessment order shall have to be considered the order passed under any proceeding under the IT Act and as such could be subject to revision and if conditions of section 263 are satisfied then it could be revised by the ld. CIT. This contention of the assessee is, therefore, rejected. 12. It is further contended on behalf of the assessee that ITNS 150 dated 01.12.2011 is not erroneous and prejudicial to the interests of revenue because the AO has examined this issue in the original assessment order dated 27.03.2006 u/s. 143(3) (PB-1) in which applicability of the provisions of section 11 to 13 have been examined by the AO. The ld. Counsel for the assessee referred to the chart of the events reproduced above, and submitted that the Tribunal vide order dated 24.04.2009 allowed all the appeals of the assessee holding that the AO cannot open the question of registration on year to year basis and after appeal of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sessment order and granted relief to the assessee because the assessee was granted registration u/s. 12A of the IT Act. Thereafter, the history of the assessee, as noted above, shows that in the same assessment year 2003-04, the AO passed another order u/s. 143(3)/148 dated 31.12.2007 (PB-12). Considering that since there is change in the objects of the assessee, therefore, the assessee is not eligible for benefit u/s. 11 12 of the IT Act and after certain disallowances made, income was computed accordingly. The issue ultimately travelled to the Tribunal in ITA No. 28/Alld./2009 etc. and the Tribunal vide order dated 24.04.2009 (PB-24) allowed the appeals of the assessee for statistical purposes with direction to frame the assessments de novo. In the said order, it was held that the AO cannot open the question of registration on year to year basis and the jurisdiction of the AO is confined to exemption whether income had been applied towards the objects in respect of which registration had been granted. Before re-assessment proceedings could be taken as per direction of the Tribunal, the ld. CIT cancelled the registration u/s. 12AA(3) of the IT Act on dated 08.03.2010 (PB-45). Wh ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... order remained under challenge before the ld. CIT(A) who vide order dated 21.11.2013 for the assessment year 2003-04 allowed certain relief to the assessee because the registration u/s. 12AA have been restored in favour of the assessee and disallowance of expenses were examined in the light of provisions of section 11 of the IT Act. Certificate of the auditor was also considered and at PB- 177 179 (internal pages of the order 23 to 25), the ld. CIT(A) examined the issue in the light of registration restored to the assessee u/s. 12A and examined the expenses with application of income u/s. 11 of the IT Act. The ld. CIT(A) also considered those expenses which stand the test of genuineness and application of funds for charitable and religious purpose in India. Each disallowance was separately considered and the appeal of the assessee for the assessment year 2003- 04 was partly allowed (copy of order placed in PB-153). Thus on the date of passing of the impugned order u/s. 263 on dated 25.03.2014, the issue of applicability of provisions of section 11 to 13 on account of registration granted u/s. 12AA have not only been examined by the AO but also by the ld. CIT(A) and appropriate re ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... powers of CIT under this sub-section shall extend to such matters as had not been considered and decided in such appeal. Since the issue of registration u/s. 12AA has been decided in favour of the assessee and a valid registration u/s. 12A exists in favour of assessee, therefore, the assessee would be entitled for deduction of exemption u/s. 11 and 12 of the IT Act. The AO originally passed the order on 27.03.2006 granting relief u/s. 11 to 13 of the IT Act and after cancellation of registration, the AO again passed the order on 28.12.2010 denying benefit of section 11 12 to the assessee on cancellation of registration. The said order remained in appeal before the ld. CIT(A) who vide order dated 21.11.2013 granted relief to the assessee u/s. 11 to 13 of the IT Act when registration u/s. 12A was effective in favour of the assessee. Therefore, the assessment order dated 28.12.2010 stood merged with the appellate order dated 21.11.2013 and as such the same issue of benefit u/s. 11 to 13 in appeal before the ld.CIT(A) could not be subject matter of proceedings u/s. 263 of the Act. Thus, the assessee succeeds on this point as well because ITNS-150 dt. 01.12.2011 giving appeal effect i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... , the assessee should not be relegated to pursue the proceedings initiated under section 263.The notice dated March 18, 2010 was to be quashed and to be set aside. 15.2 Hon ble Kerala High Court in the case of CIT vs. Palghat Shadi Mahal Trust, 212 ITR 287, held as under : Held, dismissing the application, that what the Income-tax Officer did was to comply with the order of the Appellate Assistant Commissioner and to grant exemption to the assessee. In that event, the Commissioner could not invoke revisional jurisdiction under section 263.The Tribunal was correct in setting aside the order of the Commissioner of Income-tax. No question of law arose. 16. On the other hand, the ld. DR relied upon the impugned order. 17. On consideration of the submissions of the parties, we are of the view that there is no error in the ITNS 150 dated 01.12.2011 in appeal in giving appeal effect to the order of the Tribunal. Apart from the judgments relied upon by the ld. Counsel for the assessee which squarely apply to the facts of the case, we may rely upon the decision of Hon ble Calcutta High Court in the case of TSAI Tea Enterprises (P) Ltd. Vs. CIT, 273 ITR 119, in which it was he ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he Assessing Officer gave effect to the order of the Commissioner (Appeals) dated March 7, 1988. The appeal filed against the order of the Assessing Officer dated December 8, 1989, was not competent as the order of the Assessing Officer was made pursuant to the appeal order dated March 7, 1988, passed by the Commissioner (Appeals). (ii) That the Assessing Officer determined the loss for the assessment year in question, viz., 1982-83. The question whether or not it could be allowed to be carried forward in the subsequent years was dependent upon the fulfillment of the conditions prescribed in section 72 of the Income tax Act. It was therefore a debatable question. The set off of the carried forward loss determined for the assessment year 1982-83 would take place in some future assessment years. The direction that loss could not be allowed to be carried forward forward had not in any manner affected the determination of loss and therefore, the assessee could not be said to be aggrieved. It was not, therefore, a matter which could be regarded as a mistake apparent from the record warranting rectification under section 154. 18. Considering the above decisions and the facts of the ..... X X X X Extracts X X X X X X X X Extracts X X X X
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