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TMI Blog2020 (3) TMI 786X X X X Extracts X X X X X X X X Extracts X X X X ..... rged with the order u/s. 264 passed by the CIT and that the only course of action available to the assesses is to agitate grounds arising from the assessment order which are taken in this appeal and were not subject matter of proceedings u/s. 264 before the High Court. 4. The learned CIT(A) failed to appreciate that it is section 264(4)(a) which prohibits the CIT from revising an order u/s. 264 if an appeal against the order lies to the CIT(A) and the assessee has not waived his right of appeal and there is no provision u/s. 246A imposing similar prohibition on CIT(A) to the effect that the CIT(A) shall not adjudicate appeal against an order where the order has been made subject matter of revision proceedings u/s. 264. The CIT(A) has seriously erred in applying provisions of section 264(4) conversely 5. The appellant ought not to have been taxed in respect of transfer of capital assets being land and depreciable assets of its undertaking known as OCM Division of the appellant company to OCM India Limited since, pursuant to the Scheme of Arrangement duly approved by the Hon'ble High Courts of Gujarat as well as Punjab 8t Haryana, the said Division was vested as a going conce ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... there cannot be any appeal before him (the learned CIT (A)) against the revision order passed by the Ld. CIT under section 264 of the Act in pursuance to the provisions of section 246A of the Act. ii. The assessee has waived its right for the appeal before him (the learned CIT (A)) as provided under the provisions of section 264 of the Act. In view of the above, the Ld. CIT (A) dismissed the appeal filed by the assessee without adjudicating the issue raised before him on merit. 7. Against the order of the Ld. CIT (A) dated 7th September 2010 the assessee is in appeal before us. 8. The Ld. AR before us submitted that the assessee has not waived his right for filing the appeal before the Ld. CIT(A) against the order of the assessment dated 31st December 2007. As such the assessee first preferred the appeal to the Ld. CIT(A) dated 29th January 2008 against the impugned assessment order which was pending before him till 31st December 2008. But in the meantime the assessee has made a revision application under section 264 of the Act dated 31st December 2008 which was dismissed by the Commissioner of Income Tax on merit vide order dated 30th March 2010 before the disposal of the app ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ner (Appeals)] 57[or to the Commissioner (Appeals)] or to the Appellate Tribunal but has not been made and the time within which such appeal may be made has not expired, or, in the case of an appeal 58[to the Commissioner (Appeals) or] to the Appellate Tribunal, the assessee has not waived his right of appeal; or (b) where the order is pending on an appeal before the 59[Deputy Commissioner (Appeals)]; or (c) where the order 60 has been made the subject of an appeal 61[to the Commissioner (Appeals) or] to the Appellate Tribun 14. In the present facts and circumstances, the conditions specified under clause (c) as discussed above is applicable to the dispute on hand. The clause (c) of the provision restricts the power of the Commissioner of Income Tax to revise the order if any appeal has been preferred before the Ld. CIT(A). Undisputedly, in the present case the appeal has already been preferred to the Ld. CIT(A). However, the Ld. CIT has passed the order under section 264 of the Act. Thus it is transpired that the order passed by the Ld. CIT under section 264 of the Act is against the provisions of law as discussed above. 15. At this juncture, we also find pertinent to refer ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... -section (1) or under sub-section (2) or sub-section (3) or sub-section (5) of section 185 in respect of an assessment for the assessment year commencing on or before the 1st day of April, 1992; (h) an order cancelling the registration of a firm under sub-section (1) or under sub-section (2) of section 186 in respect of any assessment for the assessment year commencing on or before the 1st day of April, 1992 or any earlier assessment year; (ha) an order made under section 201; (hb) an order made under sub-section (6A) of section 206C; (i) an order made under section 237; (j) an order imposing a penalty under- (A) section 221; or (B) section 271, section 271A, section 271AAA, section 271AAB, section 271F, section 271FB, section 272AA or section 272BB; (C) section 272, section 272B or section 273, as they stood immediately before the 1st day of April, 1989, in respect of an assessment for the assessment year commencing on the 1st day of April, 1988, or any earlier assessment years; (ja) an order of imposing or enhancing penalty under sub-section (1A) of section 275; (k) an order of assessment made by an Assessing Officer under clause (c) of section 158BC, in respe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... matter, the previous proceeding or any part thereof be reopened or that he be re-heard. Explanation.-For the purposes of this section, "appointed day" means the day appointed by the Central Government by notification in the Official Gazette. On perusal of the above provisions, it is revealed that there is no restriction imposed upon the Ld. CIT (A), like in the provisions of section 264 of the Act, for not deciding the issue against the assessment order in a situation where the assessee has made a revisionary application under section 264 of the Act. 16. We also find that the Hon'ble Allahabad High Court in the identical facts and circumstances has decided the issue in favor of the assessee in the case of Yogendra Parsad Santosh Kumar Vs. Commissioner of Income Tax reported in 44 taxmann.com 299. 16.1 The facts in the above case are like this. The AO completed the assessment under section 143(3) of the Act by order dated 26/12/2011. The assesse preferred an appeal before the Ld. CIT(A) against such assessment order on 10-01-2012. The assessee further filed an application before the CIT(A) for withdrawal of appeal file against the order of the AO. Thereafter the assessee on 28 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ty Commissioner (Appeals). For an appeal preferred before Deputy Commissioner (Appeals), Clause (b) says that if an order on appeal is pending but when an appeal is preferred before Commissioner (Appeals) or Appellate Tribunal, Clause (c) contemplates that the order has been made subject of appeal, meaning thereby mere filing of appeal against assessment order is sufficient to attract clause (c) and thereafter power of revision shall stand lost and cannot be invoked. In view thereof, it is to be held that Commissioner committed a manifest error in exercising revisional power when petitioner's appeal was pending before Commissioner (Appeals). The revisional order, therefore, was wholly without jurisdiction. That being so, it has rightly been recalled. The Appellate Authority has rightly proceeded to decide appeal in view of the fact that petitioner did not press his application for withdrawal of appeal and more so in the light of judgment of Apex Court in CIT v. Rai Bahadur Hardutroy Motilal Chamaria [1967] 66 ITR 443 (SC), the appeal filed could not have been withdrawn 17. The learned DR before us at the time of hearing has not brought any iota of evidence suggesting that th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s a limited company and has the support of the professionals. Therefore it is not expected from such company to move the appeal before the learned CIT (A) and also make application for the revision under section 264 of the Act simultaneously which is unwanted under the provisions of law. Thus the question arises whether the assessee has done so intentionally or due to negligence. Whatever is the case, the assessee has acted negligently therefore in our considered view some cost should be imposed upon the assessee. Accordingly we direct the assessee to deposit a sum of Rs.40,000 to the income tax office before the commencement of the proceedings before the learned CIT (A) for its negligent approached. 23. In view of the above and after considering the facts in totality, we set aside the finding of the Ld. CIT(A) and direct him to admit the appeal filed by the assessee and decide the issue afresh as per the provisions of law on merit. It is also pertinent to note that the assessee shall cooperate during the appellate proceedings before the Ld. CIT(A) and file the necessary supporting documents in support of its contention. Hence the ground of appeal of the assessee is partly allowe ..... X X X X Extracts X X X X X X X X Extracts X X X X
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