TMI Blog2015 (7) TMI 405X X X X Extracts X X X X X X X X Extracts X X X X ..... 05.2012 is not required for disposal of appeal before the Tribunal. In these circumstances, we are of the opinion that the entire para 31 of the Tribunal’s order be deleted and the Tribunal order shall end with Para No.30 and Para No.31 shall be read as follows: “31. In the result appeal of the assessee is dismissed”. - M.A. No.43/Hyd/2014(Arising out of ITA No.1080/Hyd/2011 - - - Dated:- 20-3-2015 - Shri B. Ramakotaiah And Smt.Asha Vijayaraghavan JJ. For the Appellant : Shri A.V. Raghuram For the Respondent : Shri Rajat Mitra, DR ORDER Per Smt. Asha Vijayaraghavan, J.M. The assessee filed this miscellaneous petition against the order of the Tribunal in ITA No.1080/Hyd/2011 passed for A.Y 2006-07, dated 18.0 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ws: 31. Even on merit, in our opinion, through the Agreement of Sale dated 2.11.2005, the assessee is entitled to receive ₹ 5,01,60,000/- towards sale consideration of the property and it is accrued to the assessee as the assessee has right to receive the same. As the assessee has been following the mercantile system of accounting and the whole amount of sale should be considered as accrued to the assessee. The CIT is justified in directing the Assessing Officer to examine the issue afresh. It is also on record that the amount accrued to the assessee during current year is ₹ 5,01,60,000 and assessee received ₹ 36.55 lakhs on the date of signing the agreement and the balance is to be paid within 9 months and get the fin ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 0/- accrued to the assessee. 5. It was further submitted that Commissioner of Income Tax directed the Assessing Officer to pass an assessment order in a particular fashion, which in itself, is illegal. But it was not a direction to make an addition. However, the Hon'ble Tribunal by giving finding on facts in paragraph 31 of its order has over stepped its jurisdiction which resulted in enhancement of income. It is submitted that the Hon'ble Tribunal under the provisions of section 254 of the Act has no power to enhance the income. To this extent, there is an apparent error in the order of the Hon'ble Tribunal which requires necessary modification. Further, the observations and findings of the Hon'ble Tribunal in paragraph ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... y error in the assessment order dated 24.12.2008 much less any prejudice to the revenue and consequently the assumption of the power u/s 263 as well as the impugned order u/s 263 are without jurisdiction, void ab initio, not sustainable in law and liable to be quashed. 3. The ld CIT-IV ought to have noted that the fact of execution of agreement of sale and receipt of advance for sale of land, the subsequent cancellation of the Agreement of Sale and refund of the monies stands fully proved beyond any doubt. All the evidences on record, including evidences for payments through Bank, the information and explanations furnished during the course of hearings u/s 263 proceedings, the verifications of original documents and records as required b ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rder u/s 263 dated 28.03.2011 be quashed and the assessment order u/s 143(3) dated 24.12.2008 be sustained and (b) the AO be restrained from carrying out any assessment proceedings in pursuance of the impugned order u/s 263 till the disposal of this appeal filed before the Hon'ble ITAT . 8. From the reading of the grounds of appeal, we are of the opinion that para 31 of the order dated 18.05.2012 is not required for disposal of appeal before the Tribunal. In these circumstances, we are of the opinion that the entire para 31 of the Tribunal s order be deleted and the Tribunal order shall end with Para No.30 and Para No.31 shall be read as follows: 31. In the result appeal of the assessee is dismissed . 9. In the result miscella ..... X X X X Extracts X X X X X X X X Extracts X X X X
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