New User   Login      
Tax Management India .com TMI - Tax Management India. Com
Extracts
Home List
← Previous Next →

2016 (7) TMI 619 - ITAT KOLKATA

2016 (7) TMI 619 - ITAT KOLKATA - TMI - Entitlement to exemption u/s 11 - AO denied exemption u/s 11 on the ground that there was violation by the assessee of the provision of section 13(1)(c ) and section 13(2)(g) - maintainability of the application of the Assessee before the DIT(E) u/s.264 - whether here was no power under the Act under which an assessee can withdraw an appeal filed before CIT(A)? - Held that:- The CIT considered the petition u/s 264 of the Act and passed an order dated 28.11 .....

X X X X X X X

Extract - Part text only
Click here to Access Full Contents

X X X X X X X

to exercise powers of enhancement and therefore the request for withdrawal of the appeal would not be acceded to. This is because the period of limitation for filing an application for revision u/s.264 of the Act in terms of Sec.264(3) is one year from the date on which the order sought to be revised was communicated to the Assessee. The order of assessment in the present case was passed on 29.12.2010. The period of limitation would therefore end by 29.12.2010. In the given circumstances, the C .....

X X X X X X X

Extract - Part text only
Click here to Access Full Contents

X X X X X X X

iven facts and circumstances the CIT(A) ought not to have exercised his appellate jurisdiction on the appeal filed by the assessee. As we have already observed that when CIT(A) cannot question the jurisdiction of CIT u/s 264 of the Act on the ground that there was violation of the provision of section 264(4)(c) of the Act. We are of the view that in the light of the above conclusions the question whether the assessee can withdraw an appeal filed before CIT(A), becomes academic, since the appeal .....

X X X X X X X

Extract - Part text only
Click here to Access Full Contents

X X X X X X X

basish Lahiri, JCIT, Sr.DR ORDER PER N.V.VASUDEVAN, JM: This is an appeal by the assessee against the order dated 21.03.2013 of CIT(A) Jalpaiguri, relating to AY 2008-09. 2. The Assessee is a registered society. The Assessee was granted registration u/s 12A of the Income Tax Act, 1961 (Act) and was therefore entitled to claim exemption u/s.11 of the Act subject to fulfilment of other conditions laid down in Sec.11 of the Act. For A.Y.2008-09 the assessee filed return of income the assessee filed .....

X X X X X X X

Extract - Part text only
Click here to Access Full Contents

X X X X X X X

l income of the assessee was determined by the AO at ₹ 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 t .....

X X X X X X X

Extract - Part text only
Click here to Access Full Contents

X X X X X X X

x (Exemption) had also passed an order dated 28.11.2011on the petition filed by the assessee u/s 264 of the Act and enclosed a copy of the said order along with the letter praying for withdrawal of the appeal. 4. It appears that for administrative reasons the appeal filed by the assessee was taken up for consideration by CIT(A)-Jalpaiguri and a notice fixing the date of hearing on 10.01.2013 was received by the assessee. The assessee in response to the aforesaid notice filed a letter dated 10.01 .....

X X X X X X X

Extract - Part text only
Click here to Access Full Contents

X X X X X X X

er of assessment and if the assessee is allowed to withdraw its appeal then such power to withdraw the appeal will be misused by the assessee the moment he realises that the CIT(A) is likely to enhance his income. The CIT(A) was therefore of the view that the an assessee having fled an appeal cannot withdraw the appeal filed before CIT(A). He was of the view that there was no provision under the Act for withdrawal of the appeal filed before CIT(A). In coming to the above conclusion, the CIT(A) p .....

X X X X X X X

Extract - Part text only
Click here to Access Full Contents

X X X X X X X

come sought to be taxed by the AO. In respect of all other matters the Hon ble Supreme Court held that the First Appellate Authority had no jurisdiction to make enhancement. In this judgment the Hon ble Supreme Court referred to the scheme of the Act under which only an assessee has a right of appeal against the order of assessment and that is the reason that wide powers are conferred on the First Appellate Authority including powers of enhancement. The Hon ble Supreme Court incidentally made a .....

X X X X X X X

Extract - Part text only
Click here to Access Full Contents

X X X X X X X

er 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 .....

X X X X X X X

Extract - Part text only
Click here to Access Full Contents

X X X X X X X

filed its Return for Asstt. Year 2008-09 on 27.03.2009 and as per the provision of Sec. 139( 4A) such late filing automatically resulted in denial of exemptions U/S 11 of the 1. T.Act. 3. That on a correct interpretation of Sec. 264 (4) (a) and 264 (4)( c) of the 1. T.Act, the Ld. CIT(A) erred in holding that the Assessee s petition u/s 264 was not maintainable. 4. That the Ld. CIT (A) erred in dismissing the Assessee s Appeal summarily instead of deciding its grounds of appeal on merit in cont .....

X X X X X X X

Extract - Part text only
Click here to Access Full Contents

X X X X X X X

as not justified in confirming the Ld. A.O. s non existent Assessment Order. 7. That, the appellant craves leave to alter, amend, rescind and substitute any of the above- mentioned grounds and add any further grounds before or at the time of hearing of the appeal. 7. The assessee has also prayed for permission to raise the following additional grounds of appeal. Additional Ground : 1. That, on the facts and in the circumstances of the case the Ld. CIT(A) erred in not permitting the assessee to w .....

X X X X X X X

Extract - Part text only
Click here to Access Full Contents

X X X X X X X

decision of the Hon ble Delhi High Court in the 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 purpo .....

X X X X X X X

Extract - Part text only
Click here to Access Full Contents

X X X X X X X

ereby 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. However, by the time the AAC came to decide the appeal, if the revision had stood decided by the Commissioner, then the assessment orders of the Assessing Officer under revision would merge into the order of the Commissioner and, consequently, loose its .....

X X X X X X X

Extract - Part text only
Click here to Access Full Contents

X X X X X X X

ntion was also drawn to the fact that u/s 264(4)© of the Act revision application u/s 264 of the Act is not maintainable only where the order has been made subject of appeal to the CIT. It was pointed out that the CBDT in Circular No.367 dated 26.07.1983 has clarified the meaning of the word subject of an appeal as follows :- An order cannot be said to have been made subject of an appeal if the appeal has been disposed of by the CIT(A) or the ITAT without passing an order u/s 251(1) or 254( .....

X X X X X X X

Extract - Part text only
Click here to Access Full Contents

X X X X X X X

assessee s income in an appeal by the assessee against the order of assessment. It was submitted by the ld. Counsel that in the present case the CIT(A) had not exercised any power of enhancement. Submissions were made on the other grounds of appeal also. The ld. DR placed reliance on the order of CIT(A). 11. We have given a very careful consideration to the rival submissions. Sec.264 of the Act reads thus: 264. (1) In the case of any order other than an order to which Section 263 applies passed .....

X X X X X X X

Extract - Part text only
Click here to Access Full Contents

X X X X X X X

s 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, adm .....

X X X X X X X

Extract - Part text only
Click here to Access Full Contents

X X X X X X X

ight of appeal; or (b) where the order is pending on an appeal before the Deputy Commissioner (Appeals)]; or (c) where the order has been made the subject of an appeal to the Commissioner (Appeals) or to the Appellate Tribunal. (5) Every application by an assessee for revision under this section shall be accompanied by a fee of five hundred rupees. (6) On every application by an assessee for revision under this sub-section, made on or after the 1st day of October, 1998, an order shall be passed .....

X X X X X X X

Extract - Part text only
Click here to Access Full Contents

X X X X X X X

rder in revision under sub-section (6) may be passed at any time in consequence of or to give effect to any finding or direction contained in an order of the Appellate Tribunal, National Tax Tribunal,] the High Court or the Supreme Court. Explanation 1.-An order by the Commissioner declining to interfere shall, for the purposes of this section, be deemed not to be an order prejudicial to the assessee. Explanation 2.-For the purposes of this section, the Deputy Commissioner (Appeals) shall be dee .....

X X X X X X X

Extract - Part text only
Click here to Access Full Contents

X X X X X X X

ding that an order cannot be said to have been made subject of an appeal if the appeal has been disposed of by the CIT(A) or the ITAT without passing an order u/s 251(1) or 254(1) on merits. Therefore 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 o .....

X X X X X X X

Extract - Part text only
Click here to Access Full Contents

X X X X X X X

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 29.12.2010. The CIT considered the petition u/s 264 of the Act and passed an order dated 28.11.2011. At .....

X X X X X X X

Extract - Part text only
Click here to Access Full Contents

X X X X X X X

 

 

 

 

 



|| Home || Acts and Rules || Notifications || Circulars || Schedules || Tariff || Forms || Case Laws || Manuals ||

|| About us || Contact us || Disclaimer || Terms of Use || Privacy Policy || TMI Database || Members || Site Map ||

© Taxmanagementindia.com [A unit of MS Knowledge Processing Pvt. Ltd.] All rights reserved.

Go to Mobile Version