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TMI Blog2016 (7) TMI 619X X X X Extracts X X X X X X X X Extracts X X X X ..... e on the ground that there was violation by the assessee of the provision of section 13(1)(c ) and section 13(2)(g) of the Act. The total income of the assessee was determined by the AO at Rs. 65,09,620/-. 3. Aggrieved by the order of AO the assessee preferred appeal before CIT(A). There is no dispute that in the normal course appeal had to be filed and had to be decided by CIT(A)-XIV, Kolkata. On 5th September, 2012, the Assessee filed a lettere dated 2.9.2012 before the CIT(A)-XIV, Kolkata that it intends to file an application u/s 264 against the order of assessment before Director of Income Tax (Exemption), Kolkata and therefore the assessee wants to withdraw its appeal before CIT(A)-XIV, Kolkata. No order whatsoever was passed on the request of the assessee for withdrawal of the appeal. There was a hearing before CIT(A) on 16.11.2012. On this date the assessee filed a letter before CIT(A) praying for withdrawal of the appeal on the ground that the assessee had submitted a petition u/s 264 of the Act to the Director of Income Tax (Exemption), Kolkata. The assessee also pointed out that the Director of Income Tax (Exemption) had also passed an order dated 28.11.2011on the petit ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on'ble Supreme Court incidentally made a reference to the power of withdrawal of an appeal and referred to the decision of Lahore High Court in the case of CIT vs Nawab Shah Nawaz Khan 6 ITR 370(SC) wherein it was held that the tax payer cannot be allowed to withdraw an appeal filed against an order of assessment. The CIT(A) after making a reference to the above decisions, thereafter observed that as per the provision of section 264(4)(c) of the Act, an application u/s 264 of the Act was not maintainable as an appeal against the order of assessment was pending when the application u/s.264 of the Act was made by the Assessee before the DIT(E). Thereafter the CIT(A) further observed that except filing a request for withdrawal of the appeal the assessee did not make any written or oral arguments against the order of AO. CIT(A) therefore was of the view that order of the AO has to be upheld. Accordingly CIT(A) dismissed the appeal of the assessee and confirmed the order of assessment passed by AO. 6. Aggrieved by the order of CIT(A) the assessee has preferred the present appeal before the Tribunal. The following are the grounds of appeal raised by the Assessee :- "1. That since the A ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he case of CIT vs Eurasia Publishing House (P)Ltd 232 ITR 381 (Delhi) wherein it was held that where an appeal is preferred and the Appellate Court disposes of the appeal after a contested hearing, the order or decree of the original Court merges into the appellate order or decree. For all practical purposes, thereafter, it is the appellate order or decree which exists and has to be seen as effective and binding between the parties including the purposes of execution, limitation and res judicata. Section 264 which confers revisional jurisdiction on the Commissioner over the orders passed by an authority subordinate to him is wide in its terms. The function discharged by the Commissioner is judicial in nature. Therefore, the Assessing Officer's order forming the subject-matter of revision would merge into the revisional order of the Commissioner to the extent of the controversies or issues forming the subject-matter of revision and decided thereby expressly or by necessary implication. In a case where the assessee had filed appeals before the AAC, the revisions before the Commissioner were pending the orders of the Assessing Officer would not merge into the order of the Commissioner ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... revision, call for the record of any proceeding under this Act in which any such order has been passed and may make such inquiry or cause such inquiry to be made and, subject to the provisions of this Act, may pass such order thereon, not being an order prejudicial to the assessee, as he thinks fit. (2) The Commissioner shall not of his own motion revise any order under this section if the order has been made more than one year previously. (3) In the case of an application for revision under this section by the assessee, the application must be made within one year from the date on which the order in question was communicated to him or the date on which he otherwise came to know of it, whichever is earlier : Provided that the Commissioner may, if he is satisfied that the assessee was prevented by sufficient cause from making the application within that period, admit an application made after the expiry of that period. (4) The Commissioner shall not revise any order under this section in the following cases- (a) where an appeal against the order lies to the Deputy Commissioner (Appeals) or to the Commissioner (Appeals) or to the Appellate Tribunal but has not been made and the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... fore disposal of appeal by CIT(A), otherwise than by passing an order u/s.251(1) of the Act on merit was a requirement to take the benefit of the Circular. Admittedly the no order disposing the appeal either by passing an order u/s.251(1) of the Act or otherwise was passed by the CIT(A) as on the date on which the DIT(E) passed the order u/s.264 of the Act. Be that as it may, the question is whether the CIT(A) can question the validity of order passed u/s.264 of the Act and ignore the same on the ground that the DIT(E) could not have passed the order on 28.11.2011 u/s.264 of the Act, as the order of assessment that was sought to be revised was subject to an appeal before the CIT(A). In our view it was not proper for the CIT(A) to have gone into the maintainability of an application made by the assessee u/s 264 of the Act. The admitted position in this case is that against the order of assessment the assessee had filed an appeal before CIT(A). As early as 02.09.2011, the assessee sought to withdraw the appeal before CIT(A) by filing a letter in the office of the CIT(A)-XIV, Kolkata. On 06.09.2011 the assessee filed a petition u/s 264 of the Act against the order of assessment dated ..... X X X X Extracts X X X X X X X X Extracts X X X X
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