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TMI Blog2018 (12) TMI 122X X X X Extracts X X X X X X X X Extracts X X X X ..... 2007 valid for the Asstt. Year 2007-08 and onwards. 3. For the Asstt. Year 2010-11, they have filed their return of income on 31.3.2011 declaring nil income. During scrutiny, learned AO observed that in respect of one unit of the assessee, viz., Central Institute of Road Transport, Pune ("CIRT"), the assessee incurred an expenditure of Rs. 13,81,48,083/- and there is surplus of Rs. 63,15,344/-. Learned AO sought the explanation of the assessee on the aspect of the applicability of the amended proviso to Section 2(15) and after hearing the assessee reached a conclusion that the assessee fails to qualify as an organization for charitable purpose and also as a mutual association and, therefore, by invoking proviso to Section 2(15) of the Act, he computed the total income of the assessee by making addition of Rs. 63,15,344/-. 4. Aggrieved by the addition of Rs. 63,15,344/-, assessee preferred an appeal before the learned CIT(A) in ITA No.1724/Del/2016. When such appeal was pending, learned AO issued notice dated 27.6.2014 u/s 154 of the Act seeking to rectify the mistake by taxing the surplus of the CIRT unit of the assessee instead of the entire surplus all the units. It was contend ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... it is pending, it is submitted on behalf of the assessee that under mistaken impression and without proper instructions, the Authorized Representative of the assessee submitted a letter dated 5.1.2016 (reproduced below) before the learned CIT(A): "Assessee filed the above appeal on 11.4.2013 against assessment order u/s 143(3) dated 14.3.2013 (Appeal No.60/13-14). However, subsequently the order u/s 154/143(3) dated 8.8.2014 was passed. Assessee again filed appeal against the said order on 9.9.2014 vide Appeal No.283/14-15. There can be only one appeal for one assessment year. Therefore, appeal filed on 11.4.2013 against the assessment order u/s 143(3) dated 14.3.2013 (Appeal No.60/13-14) become infructuous and the same should be treated as withdrawn." 8. Learned CIT(A) recorded the same and in view of the fact that the appeal and the issues involved therein are not being pressed by the assessee, learned CIT(A) dismissed the appeal as withdrawn. Against this order, the assessee preferred Appeal No. 1724/Del/2016 before us, contending that the Ld. CIT(A) committed error in dismissing the appeal as withdrawn without considering the fact that no such instructions were issued by ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the learned CIT(A) to verify whether there is a specific instruction from the assessee for withdrawal of the appeal or not. He, therefore, prayed that ITA No.1252/Del/2016 may be allowed and ITA No.1724/Del/2016 may be dismissed. 12. Per contra, it is the submission of the learned AR that it is not for the first time that the assessment of the assessee had taken place and one earlier occasions also when the question as to the nature of the activities of the assessee had arisen, the appellate fora consistently held that the assessee has been conducting the charitable activities and there is no change in the activities of the assessee over a period of time. In view of the consistent view taken by the appellate fora in assessee's own case and for quite some time, it is not open for the learned AO to raise the same issue time and again without preferring any further appeal against the orders of the appellate fora. 13. He submitted that as a matter of fact, the assessee does not stand to gain by getting the appeal against the original assessment dismissed and it is only the miscommunication between the assessee and the counsel that resulted in letter dated 5.1.2016 and since the with ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f the assessee in respect of its units but there is a specific reference to CIRT, Pune and its activities. Ultimately, the surplus attributable to CIRT, Pune to the tune of Rs. 63,15,340/- was brought to tax. As observed by the Hon'ble Madras High Court after referring to the cases in T.S. Balram vs Volkart Bros. (supra) and CIT vs. Sheshasayee Paper and Boards Ltd. (2006) 283 ITR 200, the debatable issue does not fall under the purview of Section 154 of the Act and also the long drawn process of reasoning on points on which there could be two opinions, by resorting to Section 154 of the Act is impermissible. With this view of the matter, we are of the considered opinion that the order of the learned CIT(A) in quashing the order u/s 154 of the Act does not suffer any illegality or irregularity and it does not warrant any interference by this Tribunal. We, therefore, uphold the order of the learned CIT(A) in quashing the order u/s 154 of the Act and dismiss ITA No.1252 of 2016. 17. Now coming to ITA No.1724/2016, as stated earlier, this is an appeal against the order of the learned CIT(A) dismissing the appeal treating it as withdrawn. Now, it is submitted on behalf of the assessee ..... X X X X Extracts X X X X X X X X Extracts X X X X
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