TMI Blog2019 (1) TMI 1533X X X X Extracts X X X X X X X X Extracts X X X X ..... on 153A of the Act by revising Annexure-C order. The grounds as stated in Section 263 order was available to the Revenue even as against the original order passed at Annexure-I. No interference of the allowance granted by the Assessing Officer having been attempted under Section 263 of the Act; the issue stands settled for that assessment year. As for the enhanced claim made under Section 80IB not being sustainable in a return filed pursuant to a notice issued under Section 153A; it was never raised by the CIT in the order under Section 263. In such circumstances, we are of the opinion that the limitation in so far as interfering with the claim under Section 80IB of the Act has to commence from the first order at Annexure-I, which is dat ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... limitation, which admittedly had not been raised before any of the authorities under the Act. The question of limitation being a mixed question of fact and law, it could be raised at the point of an appeal under Section 260A of the Act also; if the facts are clear and require no adjudication. The dates are not in dispute with respect to the orders passed, which alone would enable an adjudication on the question of limitation. We hence frame the following question of law in so far as the appeal for the year 2001-2002: Whether the Tribunal was correct in having affirmed the order under Section 263 of the Act for reason of the period of limitation having expired at the time when the order was passed? 3. The period of limitati ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Section 80IB to ₹ 11,88,622/-, in addition to that claimed under the revised return filed at the stage of Section 143(3) proceedings. 5. The Commissioner, by Annexure-E order dated 25.03.2009, sought to revise the entire claim of ₹ 11,88,622/-, which included ₹ 70,651/- as allowed in Annexure-I order. The reasons for finding prejudice to the Revenue as seen from Annexure-E order are; (i) separate account for the eligible bills were not being maintained for determining profit having regard to the provisions of Section 80IB of the Act read with Section 80IA(5); (ii) the accounts of eligible business were not audited by an accountant and (iii) the report of audit in Form No.10CCB was neither filed with the return of incom ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of ₹ 70,651/-, which alone was claimed at that time. There could be no enhancement of such claim in a return filed pursuant to a notice under Section 153A. 8. The search proceedings cannot inure to the benefit of the assessee, in so far as making a claim far in excess of that claimed in the original assessment and which had resulted in final determination. It is also submitted that the conditions with respect to the claim as per the provisions under Section 80IB of the Act were also not complied with. Hence, the limitation commences only from Annexure-C order dated 28.12.2007, wherein though there is no discussion as to the claim under Section 80IB of the Act, the assessee having claimed it in the returns, the same is inferred to h ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... o disallow the claim further made under the return filed pursuant to notice issued under Section 153A of the Act by revising Annexure-C order. The grounds as stated in Section 263 order was available to the Revenue even as against the original order passed at Annexure-I. No interference of the allowance granted by the Assessing Officer having been attempted under Section 263 of the Act; the issue stands settled for that assessment year. As for the enhanced claim made under Section 80IB not being sustainable in a return filed pursuant to a notice issued under Section 153A; it was never raised by the CIT in the order under Section 263. 11. In such circumstances, we are of the opinion that the limitation in so far as interfering with the cl ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... contention of the appellant with respect to the claim made under Section 80IB of the Act. The appellant was found eligible under Section 80IB of the Act and the Assessing Officer was directed accordingly. In both the years we find from the first appellate orders that there was a direction issued to the Assessing Officer to grant the claim. 15. In such circumstances, we have to answer the questions of law in favour of the assessee and against the Revenue. We find that the order of assessment was not available for revision under Section 263 of the Act for reason of it having merged with the First Appellate Order. The Revenue could have taken up the matter in further appeal, but however the choice was to proceed under Section 263, which was ..... X X X X Extracts X X X X X X X X Extracts X X X X
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