TMI Blog2017 (3) TMI 809X X X X Extracts X X X X X X X X Extracts X X X X ..... ct then also the same needs to be rectified within four years as contemplated under the provision of section 154 of the Act. In the instant case the AO has rectified the order after the expiry of four years which is also not valid in the eyes of law. - Decided in favour of assessee - ITA No.495/Kol/2015 - - - Dated:- 10-3-2017 - Shri Waseem Ahmed, Accountant Member and Shri S.S.Viswanethra Ravi, Judicial Member For The Appellant Shri S.M.Surana, Advocate Fo rThe Respondent : Shri H.R.Singh, Addl.CIT ORDER Per Waseem Ahmed, AM This appeal by the assessee is against the order of Commissioner of Income Tax (Appeals)- 12, Kolkata dated 19.01.2015. Assessment was framed by A.C.I.T., Circle-56, Kolkata u/s 143(3)/147 of the Income tax Act, 1961 (hereinafter referred to as the Act ) vide his order dated 29.09.2003 for assessment year 1999-00. Shri S.M. Surana, Ld. Authorized Representative appeared on behalf of assessee and Shri H.R.Singh, Ld. Departmental Representative represented on behalf of Revenue. 2. The solitary issue raised by the assessee in this appeal is that the ld. CIT(A) erred in confirming the order of AO by treating the corporation tax ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on for the collection of tenant share of Municipal taxes and therefore, the receipt cannot be assessed under head of ' income from other sources ' . The AO is therefore, not justifying in assessing the corporation tax realization ₹ 10,38,400/- and ₹ 83,220/- by the applicant from its tenants in respect of property Act No.3,Decres Lane and 2/6 Sarat Bose Road, Kolkata as income under the head ' income from other sources '. The same is therefore deleted. Subsequently, the AO passed the effect giving order vide dated 30.05.2006 by deleting the addition as directed by the ld. CIT u/s 264 of the Act. However, subsequently the AO observed that while giving effect to the order of ld. CIT u/s 264 of the Act, a mistake apparent from record has occurred i.e. not adding the municipal taxes in the annual value of both the properties. Accordingly, the AO issued notice u/s 154 of the Act dated 07.07.2008 for rectifying the order of the ld. CIT u/s 264 of the Act dated 15.02.2008. Finally, the AO added the municipal taxes in the annual value of both the properties which were let out during the year and added to the total income of the assessee. Aggrieved ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s first ground No.1 does not become invalid merely for the reason that he has wrongly mentioned the date of the impugned order das 17.10.2006 instead of 17.10.2008. similarly, the order dated 17.10.2009 does not become invalid merely by reason of mistake in mentioning the order dated 15.02.2008 u/s 154 as the order sought to be rectified by virtue of the provisions of section 292 B of the Act. Hence the first ground of appeal is rejected. Being aggrieved by the order of ld. CIT(A) the assessee is in second appeal before us on the following grounds of appeal :- 1. That the learned Commissioner of Income Tax (Appeals) erred on facts and in law in sustaining validity of the rectification proceedings initiated by the Deputy Commissioner of Income Tax, Circle-56, Kolkata ('the Assessing Officer') by notice dated 07/07/2008 and the Order dated 17-10- 2008 made by Assessing Officer under section 154 of the Act consequent to the said Notice dated 07/07/2008 for the assessment year 1999-2000. 2. That the learned Commissioner of Income Tax (Appeals) erred in fact and in law in ignoring: (a) that a mistake apparent on the record must be an obvious and patent mis ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ders of the authorities below. The ld. AR in his rejoinder further submitted that order of the AO passed u/s 147 of the Act got merged with the order u/s 264 of the Act passed by the ld. CIT and therefore the same cannot be rectified u/s 264 of the Act. The ld. AR without prejudice to the above also submitted that if the original order is to be rectified then the period of four years which should be counted from the date of the original order i.e. 29.09.2003. Thus, the period for rectifying the order ends dated 31.03.2008 and the notice in the instant case for rectification u/s 154 of the Act was issued on 07.07.2008 which is barred by time. Subsequently the rectification order u/s 154 of the Act was passed dated 17.10.2008 which is against the provision of law. On the other hand, Ld. DR vehemently relied on the order of Authorities Below. 6. We have heard the rival contentions of both the parties and perused the materials available on record. The issue in the instant case relates to the municipal taxes received by the assessee from its tenants. The AO in its order passed u/s 147 of the Act treated the same as income from other sources. Against the order of AO the assessee fi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... eased or increased by way of rectification. Since the question of payment of rebate and the rate of rebate had once been decided and reached its finality before the Tribunal it is not open for the AO to revise his order which he has passed in compliance with the direction of the appellate authority affirmed by the Tribunal. Even if such issue can be reopened such can only be reopened by the Tribunal and none else. The Revenue accepted the order of the Tribunal, did not proceed with the reference application and allowed the same to be dismissed for nonprosecution. Having done so, the order of assessment passed by the AO in compliance with the direction of the appellate authority has been accepted by the Revenue and the same cannot be reopened at this stage in the manner it has been attempted.-T.S. Balaram, ITO vs. Volkart Brothers (1971) 82 ITR 50 (SC) : TC 53R.165 and Oil India Ltd. vs. CIT (1982) 27 CTR (Cal) 259 : (1982) 138 ITR 836 (Cal) : TC 57R.665 relied on; CIT vs. Method Trading Investment Ltd. (2001) 165 CTR (Cal) 541 : (2000) 246 ITR 588 (Cal) applied; Zdzizlaw Skakuz vs. CIT (1986) 50 CTR (AP) 39 : (1986) 158 ITR 420 (AP) : TC 32R.599, Sirsa Industries vs. CIT (198 ..... X X X X Extracts X X X X X X X X Extracts X X X X
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