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M/s Crompton Greaves Ltd. Versus CIT – 6, Mumbai

2016 (2) TMI 169 - ITAT MUMBAI

Revision u/s 263 - improper enquiry on provisions for warranty, excise duy,sales tax and liquidated damages - Held that:- CIT has rightly invoked the provisions of section 263 of the Act as the A.O. failed to make proper enquiry, examination and verifications as warranted for the proper completion of the assessment, with respect to claim of deduction of ₹ 17.72 crores with respect to the provisions for warranty, excise duy,sales tax and liquidated damages. Regarding the contentions of the .....

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ve adjudicated issues arising out of the orders of the authorities below whereby the facts still remains that the AO has not made any enquiry, examination or verification of the claim of the assessee company with respect to claim of deduction of provision of ₹ 17.72 crores with respect to provisions for warranty, sales tax, excise duty and liquidated damages. The order of the Tribunal in the first round of litigation has not been incidentally enclosed by the assessee company in the documen .....

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quiry, examination and verification’s with respect to Provisions of ₹ 17.72 crores with respect to the claim of deduction of the assessee company for provisions for liquidity damages, warranty, sales tax and excise duty, while on perusal of the assessment orders u/s 143(3) of the Act dated 28.12.2010 and other documents filed before us, we have observed that the AO has not made any enquiry whatsoever with respect to the claim of deduction of expenses of ₹ 17.72 crores towards Provisi .....

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, we find no infirmity in the order dated 06.02.2013 of the CIT passed u/s 263 of the Act setting aside the assessment order dated 28.12.10 passed u/s 143(3) of the Act as erroneous in so far as prejudicial to the interest of the Revenue and directing the AO to assess the income of the assessee company after making necessary enquiries, examination and verifications , which order of the CIT dated 06.02.2013 , we uphold . - Decided against assessee - I.T.A. No. 1994/Mum/2013, I .T.A. No. 2836/Mum/ .....

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ome Tax - 6 , Mumbai (Hereinafter called the CIT ) while ITA No. 2836/Mum/2014 is directed against the order dated 24.02.2014 passed u/ 143(3) of the Act read with Section 263 of the Act passed by learned assessing officer (Hereinafter called the AO ) . Both these appeals are heard together and disposed of by this common order for the sake of convenience and brevity. 2. We are first taking up the appeal for the assessment year 2007-08 vide ITA No. 1994/Mum/2013 arising from the order dated 06.02 .....

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ch as the Ld. A.O. had applied his mind and had made proper inquiries to his satisfaction before passing the assessment order. b. Your appellant submits that; i. The Id. AO had completed the assessment for AY.2007-08 after detailed inquiry and appreciation of the facts, evidences and the law. The provisions made on account of warranty, liquidated damages, sales tax and excise duty represented lawful business expenditures of the company and provisions were made in accordance with AS 29 of the ICA .....

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ation thereof was ascertained by the auditors and was approved by them without any qualifications in their report. c. Your appellant pleads that such an order of CIT be held to be bad in law and be quashed. 2. SERIOUS VIOLATION OF NATURAL JUSTICE a. The Ld. CIT erred in law and on facts in completing the revisionary proceedings in a complete haste and without giving sufficient time and opportunity and erred in law in ignoring all the evidences and proofs and documents available on records and fu .....

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DAMAGES, SALES TAX AND EXCISE DUTY. a. The Ld. CIT erred in law and on facts in directing ld.AO to disallow the claim for deduction for expenditures in respect of warranty, liquidated damages, sales tax and excise duty. b. Your appellant submits that; i. During the year the company had accounted for expenses on warranty amounting to ₹ 5,53,40,000 (Rs.8,47,60,000 - ₹ 2,94,20,000) and liquidated damages amounting to ₹ 9,08,90,000. The assessee company gave warranties on certain p .....

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rly accounted as income. ii. Expenses for liquidated damages has been made on contracts which were executed by the company beyond the agreed delivery dates and the compensation payable by the company for delay was computed in reasonable and prudent manner. iii. These expenses for warranty and liquidated damages have been quantified based on past experience of the company. In addition, the company has a policy to write back all the unused amounts and offer the same for taxation on expiry of the r .....

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d in respect of matters contested in appeal. vii. Without prejudice kindly note that all of the expenses under consideration were quantified and accounted by following the sound accounting principles and the policies followed were mandated by Accounting Standard 29 of the ICAI r.w.s. 209 of the Companies Act. viii. Accounting was compulsory and statutory and in the circumstances the liability had arisen in respect of the concerned expenses and in that position, each of the expenditure for which .....

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d regularly for the above mentioned expenses and liabilities. xi. The company had made complete disclosure of the facts in its financial statements which are duly audited, under schedule 16 and particularly vide Note no.33 of schedule B of Notes to accounts. The adequacy of the provisions and the need and the justification thereof was ascertained by the auditors and was approved by them without any qualifications in their report. c. Your appellant pleads that appellant's claim for deduction .....

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perating turnkey projects over a diverse portfolio that includes power systems, industrial systems and consumer products, networking and telecommunication equipments. The assessee company filed its return of income with Revenue for the assessment year 2007-08 on 29-10-2007 and thereafter filed revised return on 24-03- 2009. The case was selected for scrutiny and assessment was framed by the AO vide assessment order dated 28.12.2010 passed u/s 143(3) of the Act. Thereafter, the CIT issued notice .....

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ax, Excise and Liquidated Damages . The CIT observed that it is a settled principle of law that no expenditure in nature of contingent expenditure or provisions for expenditure can be allowed u/s 28 or 37 of the Act , unless the assessee company followed mercantile system of accounting and liability claimed on accrual basis has crystallized during the previous year relying on decision of Shri Sajjan Mills Limited v. CIT 156 ITR 585(SC). The CIT noticed from the schedule 16 read with note 33 to s .....

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s been claimed. The CIT vide notice dated 6.12.2012 intended to set aside the assessment for the assessment year 2007-08 framed by the AO u/s 143(3) of the Act vide orders dated 28.12.2010 as it was observed by the CIT that the A.O. has acted in a routine and perfunctory manner and failed to carry out relevant and necessary inquiries and examination as warranted by the facts of the case and made an assessment order which is erroneous and prejudicial to the interest of the Revenue by relying on t .....

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interest of the Revenue. The assessee company relied upon various decisions in support of its contention. The assessee company submitted that provision for warranty and liquidated damages was in accordance with Accounting Standard 29 read with section 209 of the Companies Act , 1956 and it was not a contingent liability and it was made in accordance with the settled law. In support, the assessee company relied upon the following decisions:- i) CIT v. Vintec Corpn. (P) Ltd. (2005) 146 taxman 313 .....

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Court in the case of CIT v. Gopal Purohit, 336 ITR 237 (Bom-HC) and Hon ble Supreme Court in the case of Radhasoami Satsang v. CIT (1992) 193 ITR 321 (SC). The assessee company also relied on decision of Kolkata Tribunal in the case of Hamilton Research and Technologies (P) Ltd. v. ACIT (2005) 142 Taxman 79 (Mag)(Kol)(Trib) in support and contended that even on estimate basis if provision for warranty was made by the assessee company following mercantile system of accounting, the expenditure was .....

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was duly written back as income in the following years, but he A.O. did not examine the basis for provisions made for sales tax and excise duty liability and on what account these provisions were justified. For claim of deduction for warranty, the A.O. has not examined the contract and find out when the warranty was expiring, the justification for allowing the provision cannot be made out. The CIT held that the A.O. was required to examine the normal range of the failure of the products of the c .....

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e claim for provisions for warranty etc. should have been made, but the A.O. did not carry out all these relevant inquiries. Under these circumstances, the CIT by relying on the cases of Malabar Industrial Co. Ltd., Max India Ltd., Mangal Castings and MEPCO Industries (supra) , treated the order passed by the A.O. as erroneous and prejudicial to the interest of Revenue and set aside the assessment order dated 28.12.2010 passed by the AO u/s 143(3) of the Act, by directing the A.O. to assess the .....

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nd further submitted that the CIT erroneously invoked the provisions of section 263 of the Act and it cannot be invoked until the original order dated 28.12.2010 u/s 143(3) of the Act is revised by the orders of the Tribunal in the first round and it is only the revised order u/s 143(3) of Act after giving appeal effect to the orders of the Tribunal , can be subject matter of revision by the CIT u/s 263 of the Act . The ld. Counsel submitted that the A.O. has framed an assessment order dated 24. .....

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xcise duty , sales tax and liquidity damages while in the second round, disallowance was made by the AO vide orders dated 24.02.2014 passed u/s 143(3) of the Act read with Section 263 of the Act on the following heads:- i. Provision for Warranty ₹ 5,53,40,000/- ii. Provision for Liquidity damages ₹ 9,08,90,000/- iii. Provision for Sales tax ₹ 2,67,00,000/- iv. Provision for Excise duty ₹ 43,00,000/- The ld. Counsel of the assessee company submitted that the assessee compa .....

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28.12.2010 passed by the A.O. u/s 143(3) of the Act is neither erroneous nor is prejudicial to the interest of Revenue , as the A.O. had carried out necessary , proper and detailed enquiries while framing the order dated 28.12.2010 passed u/s 143(3) of the Act. The ld. Counsel of the assessee company submitted that the Tribunal in the case of Colorcraft Kashimira Ceramic Compound v. ITO [2007] 105 ITD 599 (Mum) partly quashed the order passed u/s 263 of the Act and hence the Tribunal has power t .....

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he ld. Counsel submitted that Tribunal in the case of K.C.P. Ltd. v. ITO, 34 ITD 50(Hyd.SB) held that since there was a breach of contract by reason of delay in performance, the damages arose at the point of breach and at that point of time liability accrued, provision for liquidated damages was to be allowed as deduction. The ld. Counsel of the assessee company contended that the assessee company has been earlier allowed in preceding assessment year, the claim of liquiditated damages by the Rev .....

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ssee company with respect to the provisions for warranty, sales tax, excise duty and liquidity damages while computing income under the Act , made by the assessee company in the books of accounts and as claimed as deduction from the income computed under the Act. The ld. DR submitted that, on perusal of the assessment order dated 28.12.2010 passed u/s 143(3) of the Act by the AO, no enquiry has been made by the A.O. and the assessment order has been passed in a routine and perfunctory manner hen .....

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ct vide order dated28-12-2010. On perusal of the said assessment order dated 28.12.2010, we have observed that the A.O. has not made any enquiry with respect to the claim of deduction of the assessee company with respect to provisions for warranty charges, excise duty, sales tax and liquidity damages amounting to ₹ 17.72 crores claimed as deduction by the assessee company from the income of the assessee company and the claim made by the assessee company was accepted by the A.O. without any .....

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ions as the amount is reflected under the head Provisions and contingent liabilities as provisions and contingent liabilities prima-facie cannot be claimed as expenses as it is settled law under the Act that deductions while computing income under the Act can only be claimed for known and ascertained liabilities having crystallized during the assessment year which are incurred wholly and exclusively for the purposes of business. Section 263 of the Act stipulates as under: E.-Revision by the [Pri .....

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such order thereon as the circumstances of the case justify, including an order enhancing or modifying the assessment, or cancelling the assessment and directing a fresh assessment. [Explanation 1.]-For the removal of doubts, it is hereby declared that, for the purposes of this sub-section,- (a) an order passed [on or before or after the 1st day of June, 1988] by the Assessing Officer shall include- (i) an order of assessment made by the Assistant Commissioner 2[or Deputy Commissioner] or the I .....

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e Board in this behalf under section 120; (b) "record" [shall include and shall be deemed always to have included] all records relating to any proceeding under this Act available at the time of examination by the [Principal Commissioner or] Commissioner; (c) where any order referred to in this sub-section and passed by the Assessing Officer had been the subject matter of any appeal [filed on or before or after the 1st day of June, 1988], the powers of the [Principal Commissioner or] Co .....

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rification which should have been made; (b) the order is passed allowing any relief without inquiring into the claim; (c) the order has not been made in accordance with any order, direction or instruction issued by the Board under section 119; or (d) the order has not been passed in accordance with any decision which is prejudicial to the assessee, rendered by the jurisdictional High Court or Supreme Court in the case of the assessee or any other person. ] [(2) No order shall be made under sub-s .....

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ng the period of limitation for the purposes of sub-section (2), the time taken in giving an opportunity to the assessee to be reheard under the proviso to section 129 and any period during which any proceeding under this section is stayed by an order or injunction of any court shall be excluded. We have observed that w.e.f. 1st June, 2015 by Finance Bill 2015, Explanation 2 to section 263 was inserted to declare the law which reads as under:- [Explanation 2.-For the purposes of this section, it .....

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e Board under section 119; or (d) the order has not been passed in accordance with any decision which is prejudicial to the assessee, rendered by the jurisdictional High Court or Supreme Court in the case of the assessee or any other person. ] We would like to refer at this stage to the meaning of Explanation as inserted in the Act whereby the Hon ble Supreme Court in the case of Sundaram Pillai v. Pattabiram reported in (1985) 1 SCC 591, whereby Fazal Ali , J culled out from earlier cases the f .....

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ful, (d) an Explanation cannot in any way interfere with or change the enactment or any part thereof but where some gap is left which is relevant for the purpose of the Explanation, in order to suppress the mischief and advance the object of the Act if it can help or assist the Court in interpreting the true purport and intendment of the enactment, and (e) It cannot, however , take away a statutory right with which any person under a statute has been clothed or set at naught the working of an Ac .....

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rder passed by the assessing officer is erroneous in so far as it is prejudicial to the interests of the Revenue, he may, after giving the assessee an opportunity of being heard and after making an enquiry pass an order modifying the assessment made by the assessing officer or cancelling the assessment and directing fresh assessment. The interpretation of expression "erroneous in so far as it is prejudicial to the interests of the revenue" has been a contentious one. In order to provid .....

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on or instruction issued by the Board under section 119; or (d) the order has not been passed in accordance with any decision, prejudicial to the assessee, rendered by the jurisdictional High Court or Supreme Court in the case of the assessee or any other person. This amendment will take effect from 1st day of June, 2015. Notes on Clauses Finance Bill 2015 Clause 65 of the Bill seeks to amend section 263 of the Income-tax Act relating to revision of orders prejudicial to revenue. The existing pr .....

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essment. It is proposed to amend sub-section (1) of the aforesaid section to insert an Explanation so as to provide that an order passed by the Assessing Officer shall be deemed to be erroneous in so far as it is prejudicial to the interests of the revenue, if, in the opinion of the Principal Commissioner or Commissioner,- (a) the order is passed without making inquiries or verification which, should have been made; (b) the order is passed allowing any relief without inquiring into the claim; (c .....

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263 of the Act is declaratory & clarificatory in nature and is inserted to provide clarity on the issue as to which orders passed by the AO shall constitute erroneous and prejudicial to the interest of Revenue ,it is , inter-alia, provided that if the order is passed without making inquiries or verifications by AO which, should have been made or the order is passed allowing any relief without inquiring into the claim; the order shall be deemed to be erroneous and prejudicial to the interest .....

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ed(supra) whereby no enquiry/verification is made by the AO whatsoever with respect to claim of deduction of ₹ 17.72 crores with respect to the provisions for warranty, excise duty , sales tax and liquidated damages. Moreover, now Explanation 2 to Section 263 of the Act is inserted in the statute which is declaratory and claraficatory in nature to declare the law and provide clarity on the issue whereby if the A.O. failed to make any enquiry or necessary verification which should have been .....

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n a reasonable interpretation and that in fact the amendment to insert the proviso would not serve its object unless it is construed as retrospective . In CIT v. Podar Cement Pvt. Limited (1997) 92 Taxman 541(SC) , the Hon ble Supreme Court held that amendment introduced by the Finance Act,1987 in so far the related to Section 27(iii) ,(iiia) and (iiib) which redefined the expression owner of house property , in respect of which there was a sharp divergence of opinion amongst the High Courts, wa .....

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tion and verifications as warranted for the proper completion of the assessment, with respect to claim of deduction of ₹ 17.72 crores with respect to the provisions for warranty, excise duy,sales tax and liquidated damages. Regarding the contentions of the assessee company that the CIT should have set aside the orders passed by the AO after giving appeal effect to the orders of the tribunal in the first round has to be rejected as the basic facts remains that the AO has not made any enquir .....

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ction of provision of ₹ 17.72 crores with respect to provisions for warranty, sales tax, excise duty and liquidated damages. The order of the Tribunal in the first round of litigation has not been incidentally enclosed by the assessee company in the documents/paper book filed with the Tribunal. It is an established principle under the Act that provisions and contingent expenses are not allowed as deduction while computing the income of the assessee. It is only an ascertained liability whic .....

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e assessment orders u/s 143(3) of the Act dated 28.12.2010 and other documents filed before us, we have observed that the AO has not made any enquiry whatsoever with respect to the claim of deduction of expenses of ₹ 17.72 crores towards Provision for Warranty, Sales tax and excise duty and liquidated damages claimed by the assessee company while computing the income of the assessee company and the claim of the assessee company was accepted without any inquiry, examination or verification .....

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ng the AO to assess the income of the assessee company after making necessary enquiries, examination and verifications , which order of the CIT dated 06.02.2013 , we uphold . We order accordingly. 10. In the result, the appeal of the assessee company is dismissed. ITA No. 2836/Mum/2014 for A.Y. 2007-08. 11. This appeal filed by the assessee company is arising out of the orders u/s 143(3) read with Section 263 of the Act dated 24-2-2014 passed by the AO in pursuance to the order dated 06.03.2013 .....

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the case. b. Your appellant submits that : i. During the year the company had accounted for expenses/loss on, liquidated damages amounting to ₹ 9,08,90,000/- towards delayed expectation of contracts which were executed by the company beyond the agreed delivery dates and the compensation payable by the company for delay was computed in a reasonable and prudent manner based on past experience of the company and the company has a policy to write back the unused amounts and offer the same for .....

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owed. 2. DISALLOWANCE OF CLAIM FOR DEDUCTION FOR EXPENSES ON ACCOUNT OF SALES TAX OF ₹ 2.67.00,000 a. The Ld. A.O. erred in law and on facts in disallowing the claim for deduction for expenditure on sales tax of ₹ 2,67,00,000 by carrying out the directions of the CIT, without application of mind, issued while passing order dt. 06.02.2013 u/s. 263 of the Act. b. Your appellant submits that during the year the company has accounted for sales tax amounting to ₹ 2,67,00,000 represe .....

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T OF EXCISE DUTY OF ₹ 43,00,000. a The Ld. AO. erred in law and on facts in disallowing the claim for deduction for expenditures in respect of excise duty of ₹ 43,00,000 without application of mind by carrying out the directions of the CIT vide his order dt. 06.02.2013 passed u/s. 263 of the Act. b. Your appellant submits that during the year the company has accounted for excise duty amounting to ₹ 43,00,000 representing the differential duty liability that has materialized in .....

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37,93,211 without giving any opportunity of hearing and further erred in law in not passing any speaking order for the levy of interest. b. Your appellant denies any liability of payment of interest and further submits that the interest was charged in violation of the provision of Natural Justice in as much as no opportunity for hearing was given. c. Your appellant pleads that the interest levied be deleted. 5. SERIOUS VIOLATION OF NATURAL JUSTICE a. The Ld. AO. erred in law and on facts in com .....

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Your appellant pleads that an assessment made in violation of the provisions of natural justice be quashed. ORDER PASSED IN PURSUANCE OF AN INVALID ORDER u/s 263 The Ld. A.O. erred in law and facts of the case in passing an order dt. 24.02.2014 to give effect to an order u/s 263 dt. 06.02.2013 ignoring the fact that the order passed by the Ld. A.O. u/s 143(3) dt. 28.12.2010 was neither erroneous nor prejudicial to the interest of the revenue in as much as the Ld. A.O. had applied his mind and h .....

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he A.O. only after due consideration of the fact and of the law of allowability of such expenses and in that view of the matter the order could not have been termed as erroneous or prejudicial to the interest of the law. ii. The company had made complete disclosure of the facts in its financial statements which are duly audited, under schedule 16 and particularly vide Note no.33 of schedule B of Notes to accounts. The adequacy of the provisions and the need and the justification thereof was asce .....

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erred an first appeal directly before the Tribunal against the order dated 24.02.2014 passed u/s 143(3) read with Section 263 of the Act. A bare perusal of section 253(1) of the Act will reveal that following appeals can be filed before the Tribunal:- Appeals to the Appellate Tribunal. 253. (1) Any assessee aggrieved by any of the following orders may appeal to the Appellate Tribunal against such order- (a) an order passed by a [Deputy Commissioner (Appeals)] [before the 1st day of October, 1998 .....

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tion (1) of section 115VZC; or] (c) an order passed by a [Principal Commissioner or] Commissioner [under section 12AA [or under clause (vi) of sub-section (5) of section 80G] or] under section 263 [or under section 271] [or undersection 272A] [***] or an order passed by him under section 154 amending his order under section 263] [or an order passed by a [Principal Chief Commissioner or] Chief Commissioner or a [Principal Director General or] Director General or a [Principal Director or] Director .....

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ection 143 or section 147 or section 153A or section 153C with the approval of the 33[Principal Commissioner or]Commissioner as referred to in sub-section (12) of section 144BA or an order passed under section 154 or section 155 in respect of such order; [ (f) an order passed by the prescribed authority under sub-clause (vi)or sub-clause (via)of clause (23C)of section 10.] We have observed that an appeal arising from the order u/s 143(3) of the Act read with Section 263 of the Act does not find .....

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39a[or any collector] aggrieved by any of the following orders (whether made before or after the appointed day) may appeal to the Commissioner (Appeals) against- (a) an order [passed by a Joint Commissioner under clause (ii) of sub-section (3) of section 115VP or an order] against the assessee where the assessee denies his liability to be assessed under this Act or an intimation under sub-section (1) or sub-section (1B) of [section 143 or [sub-section (1) of section 200A or sub-section (1) of se .....

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sessment under sub-section (3) of section 115WE or section 115WF, where the assessee, being an employer objects to the value of fringe benefits assessed; (ab) an order of assessment or reassessment under section 115WG;] (b) an order of assessment, reassessment or recomputation under section 147 [[except an order passed in pursuance of directions of the Dispute Resolution Panel [***] [or an order referred to in sub-section (12) of section 144BA]]] or section 150; [(ba) an order of assessment or r .....

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an order referred to in sub-section (12) of section 144BA]; (d) an order made under section 163 treating the assessee as the agent of a non-resident; (e) an order made under sub-section (2) or sub-section (3) of section 170; (f) an order made under section 171; (g) an order made under clause (b) of sub-section (1) or under sub-section (2) or sub-section (3) or sub-section (5) of section 185 in respect of an assessment for the assessment year commencing on or before the 1st day of April, 1992; (h .....

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ction 271AAB,] section 271F, 60[section 271FB,] section 272AA or section 272BB; (C) section 272, section 272B or section 273, as they stood immediately before the 1st day of April, 1989, in respect of an assessment for the assessment year commencing on the 1st day of April, 1988, or any earlier assessment years; [(ja) an order of imposing or enhancing penalty under sub-section (1A) of section 275;] (k) an order of assessment made by an Assessing Officer under clause (c) of section 158BC, in resp .....

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tor imposing a penalty under section 272A; (p) an order made by a Deputy Commissioner imposing a penalty under section 272AA; (q) an order imposing a penalty under Chapter XXI; (r) an order made by an Assessing Officer other than a Deputy Commissioner under the provisions of this Act in the case of such person or class of persons, as the Board may, having regard to the nature of the cases, the complexities involved and other relevant considerations, direct. On perusal of Section 246A of the Act, .....

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(1992) 194 ITR 645(SC) whereby the Hon ble Supreme Court held that : 7. We have heard the counsels for both the parties. The question at issue is regarding a right of appeal. It is true that there is no inherent right of appeal to any assessee and that it has to be spelt from the words of the statute, if any, providing for an appeal. But it is an equally well-settled proposition of law that, if there is a provision conferring a right of appeal, it should be read in a reasonable, practical and li .....

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