TMI Blog2018 (2) TMI 765X X X X Extracts X X X X X X X X Extracts X X X X ..... e is no reason to restrict the power of the Tribunal under section 264 of the Act to entertain any question for the first time so long as the relevant facts are on record. The Court referred to the judgment in case of Jute Corporation of India Ltd. v. CIT [1990 (9) TMI 6 - SUPREME Court] and noted the observations with approval that an appellate authority is vested with all the plenary powers which the subordinate authority may have and there is no reason to justify curtailment of the power of the appellate Commissioner in entertaining an additional ground raised by the assessee in seeking modification of the order of assessment passed by the Assessing Officer. The question of double taxation was very much appearing before the Assessing ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e course of such survey, the statement of one Kailash Shah, Director of the Company was recorded, in which, he disclosed an unaccounted income of ₹ 2.62 crores (rounded off) during the assessment year 2013-14. In the return of income that the company filed for the said assessment year 2013-14, the company declared a total income of ₹ 3.03 crores (rounded off) which included the said income of ₹ 2.62 crores disclosed during the survey. 4. While the assessment of the petitioner's return for the assessment year 2013-14 was still pending, the Assessing Officer took the petitioner's return for the assessment year 2012-13 in scrutiny. During such scrutiny assessment, the Assessing Officer was of the opinion that out o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... m of ₹ 44.80 lakhs to be taxed twice. To this extent, he challenged the order of assessment for the assessment year 2013-14. 8. During the hearing of the revision petition, the Commissioner also called for the remarks of the Assessing Officer. Such remarks were offered under a communication dated 15.03.2017, in which, the Assessing Officer conveyed as under: 2. In this connection, vide letter of even number dated 16/02/2017 the undersigned was directed to submit report on the assessee's application u/s 264 of the income Tax Act made before your honour in the above case for the Assessment Year 2013-14. In this case survey proceedings u/s. 133A of the Act was carried out on 11/10/2012 at the business premises of the compan ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 377; 2.62 lakhs made by the assessee for the assessment year 2013-14 and which sum of ₹ 44.80 lakhs was shifted to the assessment year 2012-13 for taxing purpose. On the basis of such factual position, the assessee contended before the Commissioner that not reducing the assessee's income by ₹ 44.80 lakhs for the assessment year 2013-14 would amount to double taxation. Same income was being taxed twice. Despite clear position as admitted by the Assessing Officer in the said communication dated 15.03.2017, the Commissioner dismissed the Revision Petition on the ground that the assessee could have filed the revised return for the assessment year 2013-14 within the stipulated time. No explanation is offered by the assessee for n ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... also be too technical. When the assessee's return was being finalized for the assessment year 2012-13, he had offered the said income of ₹ 44.80 lakhs to tax on the basis that the said income would be reduced from the return for the assessment year 2013-14. The Assessing Officer could not have accepted one part of the assessee's offer while rejecting later. Consensus of the assessee was conditional viz. that the income may be taxed for the assessment year 2012-13 but must be released from consideration of the assessee's income for the assessment year 2013-14. The Assessing Officer acted only one part of the offer. 11. Even the Commissioner could have in exercise of his revisional powers, corrected the injustice. Sectio ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sioner in entertaining an additional ground raised by the assessee in seeking modification of the order of assessment passed by the Assessing Officer. 12. Even otherwise, the question of double taxation was very much appearing before the Assessing Officer during the assessment for the assessment year 2013-14. It was this issue which the assessee had carried before the Commissioner in revision petition. Thus, this issue arose out of the order of assessment and all necessary facts to entertain such a question were any way on record. It is by now well settled that assessment proceedings are not adversarial and the Revenue can tax only the real income. 13. Under the circumstances, impugned order dated 30.03.2017 of the Commissioner is set ..... X X X X Extracts X X X X X X X X Extracts X X X X
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