TMI Blog2020 (3) TMI 786X X X X Extracts X X X X X X X X Extracts X X X X ..... the Ld. CIT under section 264 of the Act. As such there was no question on the validity of the order passed by the Ld. CIT under section 264 of the Act. Thus the facts of the case referred by the Ld. CIT (A) in his order is distinguishable from the present facts of the case. Accordingly, in our humble and considered opinion the principles laid down by the Hon ble Delhi High Court in the case of CIT Vs. Eurasia Publishing house (p) ltd (supra) are not applicable in the present facts of the case. Accordingly, we are not inclined to place our reliance on such judgment. Before parting, we also note that the assessee is 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 & ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... by the Hon'ble High Courts of Gujarat as well as Punjab 8t Haryana, the said Division was vested as a going concern in OCM India Limited. 6. The learned CIT(A) ought to have decided on merits the following disallowances / additions made by the A.O.: ₹ 60,66,537/- u/s. 43B in respect of payments made during the period 1.4.2004 to 31.10.2005 out of pre-existing liability brought forward from earlier years, ₹ 14,36,449/- u/s. 40A(2)(a) out of interest, ₹ 12,14,759/- out of Repairs to Plant Machinery considering it as capital expenditure. ₹ 3,00,000/- on lump sum basis out of various business expenses. ₹ 8,80,800/- out of Long Term Capital Loss on sale of Land at Joka, Kolkatta. 3. The interconnected issue raised by the assessee in ground No. 1 to 4 is that the Ld. CIT (A) erred in not adjudicating the appeal filed by the assessee on the reasoning that the issue has been decided by the Ld. CIT under section 264 of the Act. 4. The facts in brief as culled out from the order of the authorities below are that the assessee is a public limited company and engaged in the business of Manufacturing and trading ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 appeal pending before the Ld. CIT(A). However the Ld. AR contended that the Ld. CIT under section 264 of the Act has no power to pass the order once the appeal has been preferred by the assessee before the Ld. CIT (A) as per the provisions of section 264(4)(c) of the Act. 9. The learned AR in support his contention relied on the judgment Hon ble Allahabad High Court in the case of Yogendra Parsad Santosh Kumar Vs. Commissioner of Income Tax reported in 44 taxmann.com 299. 10. On the contrary, the Ld. DR claimed that the order of the AO has been merged with the order of the Ld. CIT under section 264 of the Act. Therefore there cannot be any appeal before the Ld. CIT (A) against the impugned assessment order. 11. We have heard the rival contentions of both the parties and perused the materials available on record. Before we go to the specific issue, we find pertinent to note certain relevant dates which are necessary for deciding the issue on hand: i. Date of assessment order 31st December 2007 ii. D ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tion 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 the provisions of section 246A of the Act which reads as under: Appealable orders before Commissioner (Appeals). 246A. (1) Any assessee or any deductor or any collector aggrieved by any of the following orders (whether made before or after the appointed day) may appeal to the Commissioner (Appeals) against- (a) an order passed by a Joint Commissioner under clause (ii) of sub-section (3) of section 115VP or an order against the assessee where the assessee denies his liability to be assessed under this Act or an intimation under sub-section (1) or sub-section (1B) of section 143 or sub-section (1) of section 200A or sub-section (1) of section 206CB, where the assessee or the deductor or the collector objects to the making of adjustments, or any order of assessment under sub-section (3) of section 143 except an order passed in pursuance of directions of the Dispute Resolution Panel or an order referred to in sub-section (12) of section 144BA or section 144 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e 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 respect of search initiated under section 132 or books of account, other documents or any assets requisitioned under section 132A on or after the 1st day of January, 1997; (l) an order imposing a penalty under sub-section (2) of section 158BFA; (m) an order imposing a penalty under section 271B or section 271BB; (n) an order made by a Deputy Commissioner imposing a penalty under section 271C, section 271CA, section 271D or section 271E; (o) an order made by a Deputy Commissioner or a Deputy Director imposing a penalty under section 272A; (p) an order made by a Deputy Commissioner imposing a penalty under section 272AA; (q) an order imposing a penalty under Chapter XXI; (r) an order made by an Assessing Officer other than a Deputy Commissioner under the provisions of this Act in the case of such person or class of persons, as the Board may, having regard to the nature of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 28-02-2012 filed a revisionary application before the Ld. CIT under section 264 of the Act by stating that he has already waived his right of appeal before the ld. CIT-A. Accordingly the Ld. CIT partly deleted the addition made by the AO. However the Ld. CIT(A) reject the withdrawal application of the assesse and decided the matter on merit against the assessee. 16.2 For better understanding, the relevant finding of the Hon ble Allahabad High Court is reproduced as under: There is no provision in Income tax Act which permits withdrawal of an appeal, once it is filed, and registered. Once right of appeal is exhausted, by party concerned, and the appeal is filed before appropriate Appellate Authority, who after receiving same has registered it, there is no provision in the statute permitting withdrawal thereof. In this particular case, however, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 the appeal before the Ld. CIT(A) was not pending either at the time of filing the revisionary application or passing the revisionary order under section 264 of the Act. Thus as a matter of fact the appeal of the assessee was pending before the Ld. CIT(A) during the relevant time when the matter was decided by the Ld. CIT under section 264 of the Act. In the light of the above discussion the Ld. CIT under section 264 has exceeded his jurisdiction by passing the order which is not sustainable in the eyes of law. 18. Now coming to the facts of the case relied by the Ld. CIT (A) in his order in case of CIT Vs. Eurasia Publishing house (p) ltd. reported in 232 ITR 381. 19. The facts of the case are like this. In this case the assessee filed a rectification application dated 12-06-1970 to the AO under section 154 of the Act which was ..... X X X X Extracts X X X X X X X X Extracts X X X X
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