9911796707
TMI Blog2017 (1) TMI 668X X X X Extracts X X X X X X X X Extracts X X X X ..... law in applying s. 263 of the Act to the facts of the case for A.Y. 2010-11, by passing the impugned order dated 9th May 2014. The impugned order be held null and void. Order not erroneous The learned DIT(E) failed in appreciating that the applicability of Proviso to s.2(15)with reference to which he invokes s.263 of the Act was verified by the AO in the course of assessment, thus making the order not erroneous. The impugned order be held null and void. Order not prejudicial The learned DIT(E) erred on facts and in law in not appreciating that the order sought to be revised is not prejudicial to the interests of the Revenue. The impugned order therefore to be held null and void. Inconsistent stand of Learned DIT(E) The learned D ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... but may be in the nature of business, trade or commerce which is sufficient for disqualification. Further, it was concluded that rendering any services in relation to trade, commerce or business from whom consideration is in lieu of services received is sufficient for disqualification. The assessee is providing various infrastructure facilities and deriving income from its principle activities such as rental income and income from sale of land, and properties, and TDR to its customer and charging interest @ 16% to 18% and thus, the activities are clearly hit by proviso to section 2(15). Aggrieved by the order of ld. DIT(E) the assessee has preferred this present appeal before us on the grounds mentioned here-in-above. 3. We have heard the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tions of the parties and further perused the order of authorities below. The coordinate bench of this Tribunal while considering the appeal of assessee for AY 2009-10 passed the following order ; "9. We have heard the rival contentions perused the relevant finding given in the impugned order and the material placed on record. It is an undisputed fact that the entire exemption of claim u/s 11 was denied by the AO in the assessment order passed u/s 143(3) which is the subject matter of revision u/s 263 here in this appeal. As a result of such an order, the entire surplus amount revealed from income and expenditure account of Rs. 83.98 crores was assessed. The entire assessment order and the assessed income was subject matter of appeal before ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... secondly, whether the impugned order can be considered to be erroneous in so far as it is prejudicial to the interest of the revenue, because even after giving effect to the impugned order, there is no revenue effect. 10. On both counts, we are inclined to agree with the contention of the Ld. Senior Counsel. Because, firstly, when the entire basis of the assessment and the whole of the surplus amount has been challenged before the CIT(A), then the entire assessment order including taxing of the entire exempt income u/s 11 is the subject matter of appeal and there is complete merger with the order of the CIT(A) within the terms and ambit of section 263 read with clause (c) Explanation 1. Thus, if the subject matter of revision u/s 263 is a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... u/s 263 is cancelled and the grounds raised by the assessee are thus allowed. Other arguments of ld. Sr. Counsel are not being adjudicated upon. 5. The perusal of the order or coordinate bench for earlier year shows that Tribunal have examined the issue of exemption u/s 11 which may be the subject matter of appeal before CIT(A) or before the Tribunal. And concluded the Ld. DIT do not have the power to consider 'such matter' by exercising power under section 263. The Tribunal also examined the second aspect, which is purely academic. The income which was assessed in the original assessment order and the income which is now being sought to be assessed by virtue of order u/s 263. Under both the assessments the surplus amount would be taxed. ..... X X X X Extracts X X X X X X X X Extracts X X X X
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