TMI Blog2017 (5) TMI 1362X X X X Extracts X X X X X X X X Extracts X X X X ..... matter of disallowance in the original order of assessment and was therefore not the subject matter of the dispute before the Tribunal as well as in the proceedings before the AO pursuant to the order dated 10.01.2012. In the garb of revising the order of AO dated 14.03.2013 passed u/s 254 r.w.s.143(3) of the Act, the CT was virtually seeking to revise the order dated 31.12.2008 passed by the AO u/s 144 of the Act which is the original assessment order. The period of limitation for an action u/s 263 of the Act in so far as order dated 31.12.2008 would end on 31.03.2011. The impugned order has been passed by CIT on 25.03.2015 which is clearly barred by time in so far the issue sought to be revised in the impugned order is concerned. - D ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d further appeal before the Hon ble ITAT in ITA No.2001/Kol/2009 against the order of CIT(A). The Tribunal by its order dated 10.01.2012 set aside the order of CIT(A) and remanded to the AO for fresh consideration of both the additions made by the AO in the order of assessment. The following were the relevant observations of the Tribunal. At the outset, Ld. Counsel for the assessee stated that the assessment framed is u/s. 144 of the Act and huge additions were made on both issues without affording any opportunity to the assessee and that also ex parte. The Ld. Counsel for the assessee stated that the assessee could not cooperate during the course of assessment proceedings as the records were seized by police department and the relevan ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ences to substantiate its claim of expenses and Assessing Officer will decide on the basis of evidences as per law. In respect to share application money, the Assessing Officer will decide the issue afresh after taking into consideration the evidences filed by assessee in terms of law. Appeal of assessee is allowed for statistical purposes. 4. The AO passed an order dated 14.03.2013 giving effect to the aforesaid order of the Tribunal in which he made an addition of only ₹ 4 crores which was commission payment for non deduction of tax at source. The total income of the assessee was determined by the AO in the said order as follows :- Subject to the above discussions total income of the assessee company is computed as under : ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e capital. These were the subject matter of the appeal before CIT(A) and ultimately before the Tribunal. The AO while giving effect to the order of the tribunal is not competent to look into any other aspect, more so the item of expenditure set out by CIT in the show cause notice u/s 263 of the Act. In other words, the assessee submitted that in the garb of revising the order dated 14.03.2013 passed by the AO u/s 254 r.w.s.143(3) of the Act the CIT virtually seeks to revise the order dated 31.12.2008 passed by the AO u/s 144 of the Act. (the original order of assessment ). The assesee pointed out that the time limit for revising the said order dated 31.12.2008 had already expired i.e. the period of two years from the end of the financial ye ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s and details, or made necessary enquiries, while allowing expenditure to the assessee which has resulted in wrong assumption of facts and incorrect application of law. The assessment order is therefore erroneous and prejudicial to the interest of revenue. I am of the opinion that the case has to go back to the A.O. for fresh assessment after examining all the facts and submissions of the assessee. 8. Aggrieved by the order of CIT the CIT has preferred the present appeal before the Tribunal. 9. The ld. Counsel for the assessee reiterated the submissions as were made before CIT in reply to the show cause notice u/s 263 of the Act. He further placed reliance to the decision of the Hon ble Supreme Court in the case of CIT vs Alagendr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... jurisdiction having, thus, been invoked by the Commissioner of Income-tax beyond the period of limitation, it was wholly without jurisdiction rendering the entire proceeding a nullity. 10. Our attention was also drawn to the decision of the Hon ble Bombay High Court in the case of Ashoka Buildcon Ltd. Vs ACIT 325 ITR 574 (Bom) wherein on identical facts the Hon ble Bombay High Court held that notice u/s 263 of the Act issued on the issues unrelated to grounds on which the assessment was reopened, the period of limitation would start from the original assessment order and not from the reassessment order. Reference was also made to the decision of ITAT Hyderabad Bench in the case of Louis Berger Group Inc. vs ADIT (International Taxati ..... X X X X Extracts X X X X X X X X Extracts X X X X
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