TMI Blog2015 (12) TMI 500X X X X Extracts X X X X X X X X Extracts X X X X ..... Ld.CIT also found that the appeal before Ld.CIT(A) was pending not only at the time of filing the application but also at the time of order under section 264 of the Act. The provisions of section 264(4)(c) of the Act prohibits the Ld. CIT to pass the revision order if appeal is pending. However it was also observed in terms of CBDT Circular that an order cannot be subject of an appeal if appeal has not been disposed on merits. In the present case, appeal of assessee has never been disposed on merits rather the appeal was withdrawn by the assessee vide later dated 9th December 2011. However the Ld. CIT(A) passed the order of the appeal dismissal on dated 03-09-2012, and by that time the application filed for relief to the Ld. CIT under ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d is into the business of pesticides. The firm was assessed u/s 143(3) by the AO for the assessment year 2005-06 for an amount of ₹ 6,10,300/- and the same assessment order was rectified u/s 154 of the Act wherein the income was enhanced to an amount of ₹ 6,23,420/-. Subsequently the notice was issued under section 148 of the Act and assessment was framed accordingly u/s 147 of the Act by making an addition of ₹ 57,20,682/- to the income of the assessee and the total income was enhanced to an amount of ₹ 63,44,100/- 4. The assessee filed an application to the Ld. CIT for revision u/s 264 of the Act on dated 12-12-2011against the assessment order passed u/s 143(3)r.w.s 154/147 of the Act. The Ld.CIT has deleted the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r dated 13th December, 2011 to the ld CIT(A)-VI, Kol stating that you hereby withdraw the above appeal. However, no order has been passed by the CIT(A) before the disposal of application u/s. 254. As per the provision of Section 264(4) of the Income-Tax Act, the Commissioner shall not revise any order under that Section where the order has been made, the subject of an appeal to the Commissioner of Income-Tax (Appeals). As per CBDT Circular No. 367 dated 26th July, 1983, an order cannot be said to have been made 'subject of an appeal' where the appeals was withdrawn by the assessee and it is dismissed as such by the CIT(A) without passing an order on merits. In the instant case no such order has been passed by the Ld. CIT(A)-X ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e was not apparent from the records but interpreted as such by the CIT Sri Subrat Mishra after long arguments, debates and interpretation, the said order of rectification passed u/s. 154/264 was wrong and should be cancelled. 3. For the Learned CIT X erred in holding that on the date of passing the Order u/s. 264 by the CIT X on 30,.12.2011, an appeal by the assessee was pending before the CIT(A) XVI ignoring the fact that the appeal was dismissed by the CIT(A) XVI on 13.12.2012 as appears from the noting in Order sheet of the appeal proceedings. Mr.V.N. Purahit, Ld. AR appeared on behalf of assessee and Mr. Niloy Basan Som, Ld. DR appeared on behalf of Revenue 5. Before us Ld. AR submitted paper book which contains pages fro ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... bed the situations where order can be said to have been made subject of an appeal in terms of clause of sub section (4) 1. Section 264(4) re-produced as under:- 1. Section 264(4) provides that the Commissioner shall not revise any order under that section where the order has been made the subject of an appeal to the Commissioner (Appeals) or to the Appellant Tribunal. A doubt has been raised whether in the following situations the order can be said to have been made subject of an appeal : (i) Where the appeal was withdrawn by the assessee and it was dismissed as such; (ii) Where the appeal was dismissed on the ground that the appeal was incompetent; (iii) Where the appeal was dismissed on ground of limitatio ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... pending not only at the time of filing the application but also at the time of order under section 264 of the Act. The provisions of section 264(4)(c) of the Act prohibits the Ld. CIT to pass the revision order if appeal is pending. However it was also observed in terms of CBDT Circular that an order cannot be subject of an appeal if appeal has not been disposed on merits. In the present case, appeal of assessee has never been disposed on merits rather the appeal was withdrawn by the assessee vide later dated 9th December 2011. However the Ld. CIT(A) passed the order of the appeal dismissal on dated 03-09-2012, and by that time the application filed for relief to the Ld. CIT under section 264 of the Act was adjudicated and consequently the ..... X X X X Extracts X X X X X X X X Extracts X X X X
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