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TMI Blog2017 (5) TMI 1034X X X X Extracts X X X X X X X X Extracts X X X X ..... s in its appeal and they are reproduced herein below for reference: 1. The order of the learned CIT(A) is contrary to law, facts and circumstances of the case. 2.1 The learned CIT(A) has erred in not acknowledging that the revenue has not taken any new stand, but has merely reiterated the stand taken by the assessee himself in the preceding assessment year. Therefore, this is indeed a mistake apparent from record which is sought to be rectified. 2.2 The learned CIT(A) erred in allowing the appeal of the assessee without taking into account the revision order passed for the similar reason for A.Y.2006-07 which was not appealed against. 2.3 The learned CIT(A) ought to have appreciated the fact that since the assessee has not gone on ap ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s power itself is a discretionary power and is coupled with the duty to act fairly. The exercise of this power is also a matter of review by the Tribunal because an administrative Tribunal is duty bound to determine whether the power of the Commissioner has been exercised in a manner that complies with certain implied legal requirements. De Smith's Judicial Review of Administrative Action at page 323 states that in some context it may be confined to the question whether the competent authority has kept within the four corners of the Act and whether it has acted in good faith, but usually they will pursue their inquiry further and will consider whether the repository of a discretion although acting in good faith has abused its power by e ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... disallowed depreciation on "self-generated assets" of Rs. 1,94,91,446/- and thereby determined the total income of the assessee at Rs. 1,76,16,560/-. 5. On appeal, the Ld.CIT(A) held that the order passed by the Ld.AO U/s.154 of the Act is time barred and also decided the issue on merits in favour of the assessee. The relevant portion of the order is extracted herein below for reference: "Para 10 to 15: Issue No.1: The impugned order is barred by limitation. 10. The provisions as contained in s.154 provide that the AO has power to pass rectification orders being only. mistake apparent from record. It can be made suo moto or on an application by parties concerned after giving an opportunity to the assessee, if in case the rectification o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... further drawn that R&D charges and self-generated assets will have Nil as WDV. Similarly, there was an opinion with regard to plant & machinery which were transferred from the proprietorship to the company. The provisions of s.43(1) and Explanation 6(b) u/s 43(6) have been referred to. Such discussion itself is a pointer to the fact that a view on interpretation of law had to be taken with regard to various claims made by the appellant and examining the same in the light of existing provisions. In other words, the resultant decision would require calling for details arid processing the same to arrive at a conclusion. 13. As to whether such an exercise would be covered under the existing provisions of s.154 has been answered by the Hon' ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... " 6. Before us the Ld.AR submitted that the order passed by the Ld.AO U/s.154 of the Act, is time barred because it is passed beyond the period of 4 years from the end of the financial year in which order U/s.154 was passed. The Ld.DR could not controvert to the submission of the Ld.AR. 7. We have heard the rival submissions and carefully perused the materials available on record. From the facts of the case, it is apparent that the assessment order was passed U/s.143(1) of the Act on 06.11.2008. Therefore, the order U/s.154 of the Act has to be passed within 4 years from the end of the financial year 2008-09, i.e., before 31.03.2013. Since in the case of the assessee the assessment order U/s.154 of the Act was passed on 28.01.2014 which ..... X X X X Extracts X X X X X X X X Extracts X X X X
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