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2015 (12) TMI 500 - ITAT KOLKATA

2015 (12) TMI 500 - ITAT KOLKATA - TMI - Rectification order u/s 154 - CIT X/Kol initiated proceedings u/s. 154 to rectify the order u/s. 264 passed by his predecessor in office CIT X - CIT X held 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 - Held that:- The assessee for the relief under section 264 of the Act before Ld. CIT was accepted and the same was adjudicated, granting the relief to the assessee, b .....

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erms 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 In the present case, appeal of assessee has never been disposed on merits rather the appeal was withdrawn by the assessee vide later dated 9th December 2011.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 impugned rectifi .....

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f the Act is liable to be cancelled and the same is hereby cancelled. - Decided in favour of assessee - ITA No. 1421/Kol/2012 - Dated:- 7-10-2015 - N. V. Vasudevan, JM And Waseem Ahmed, AM For the Appellant : Shri V N Purohit, FCA For the Respondent : Shri Niloy Basan Som, JCIT-SR-DR ORDER Per Waseem Ahmed, Accountant Member This appeal by the assessee is arising out of order of Commissioner of Income Tax (Appeals)-XVI, Kolkata in appeal No.74/CIT(A)-XVI/10-11/Kol dated 21.02.2011. Order u/s. 15 .....

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6 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 .....

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an appeal to CIT(A). The CIT issued a show notice to the assessee which is reproduced as under:- "Please refer to your application for revision u/s 264 of the Income Tax Act, 1961, filed on 12th December, 2010, against order u/s. 143(3)/154/147 passed by ITO, Ward-29(3), Kolkata on 21-12-2010. In this case an order u/s. 254 of the Income Tax Act, 1961 was passed by the CIT, Kolkata-X, Kolkata on 30- 12-2011 allowing your petition. In this order the CIT had admitted your petition u/s. 264 b .....

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he date of order made u/s. 264 of the Income-Tax Act, i.e. 30-12-2011. From the records it is also seen that you had filed a letter 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 .....

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264 was made was still the subject of an appeal before the Commissioner (Appeals)-XVI, Kol and as such the Commissioner should not have revised order u/s. 264 as per the provisions of Section 264(4)(c). This being a mistake apparent from records is proposed to be rectified u/s. 154 of the Income Tax Act and your application u/s. 264 against the impugned assessment order is proposed to be dismissed as not maintainable in law. You are given an opportunity to show cause why the proposed action shou .....

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of the Act stand correct. Aggrieved assessee is in appeal before us against the order of Ld. CIT u/s 154 of the Act on the following grounds of appeal:- "1. For the Learned CIT X/Kol erred in initiating proceedings u/s. 154 to rectify the order u/s. 264 dated 30.12.11 passed by his predecessor in office CIT X. 2. For the fact that the alleged mistake was not apparent from the records but interpreted as such by the CIT Sri Subrat Mishra after long arguments, debates and interpretation, the .....

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DR appeared on behalf of Revenue 5. Before us Ld. AR submitted paper book which contains pages from no. 1 to pages 24 and submitted that in view of the CBDT Circular the order passed by the AO cannot be said to have been made "subject matter of appeal" if the appeal has been disposed of by the Ld.CIT(A) without passing an order u/s 251(1) on merits besides this Ld AR has submitted the case laws in support of his claim as mentioned under : 1. Chiranjilal Daga v. CIT & Anr. (1978) 11 .....

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thin the prescribed time. The application for relief to the Ld.CIT can be filed subject to the fulfillment of certain conditions as enumerated in the clause © of sub section (4) of section 264 of the Act. Clause © reads as under:- 264. (4) The [Principal Commissioner or] Commissioner shall not revise any order under this section in the following cases- (a) …. (b)… … (c) here the order has been made the subject of an appeal [to the Commissioner (Appeals) or] to the .....

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ribunal. 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 limitation. 2. The Board are of the view that the order cannot be said to have been made "subject of an appeal" if the appeal has bee .....

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tter on 13.12.2011 for withdrawal of appeal and submitted as follows:- 'Further to our letter dt. 9th December, 2011, deposited in your office today, we state that we do hereby withdraw the above appeal.' 3. Ld. Predecessor CIT(A)-IV vide Order Sheet dated 13.12.2011 observed on the Order Sheet as follows:- 'Mark as disposal in view of application for withdraw filed by appellant.' From the aforesaid discussion, we observe that the application filed by the assessee for the relief .....

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