TMI Blog2020 (9) TMI 149X X X X Extracts X X X X X X X X Extracts X X X X ..... barred by limitation, being issued and served upon the Appellant on 30.04.2019, which is after the expiry of period of limitation on 31.03.2019. 3. That the assessment order dt.29.12.2016 making an addition of ₹ 27,51,100 to the returned income u/s.56(2)(viib) consequent upon valuation of book value of 4,510 Nos. of Equity Shares @ ₹ 739 per share as on 31.03.2013 allotted on 31.03.2014 @ ₹ 1,349 per share. Thus, the difference of ₹ 610 per share multiplied by 4,510 Nos. of shares allotted coming to ₹ 27,51,100 has been added as above by the Id. AO. The said valuation and the consequential addition has been disputed by the Appellant in the Appeal in Form No.35 e-filed before the Id. CIT (A), Sambalpur on 22.01.2017 vide Acknowledgement No.598992731220117, which is now pending for disposal. 4. That the Id. Pr. CIT, in the impugned order u/s.263, has revised the valuation of the Equity Shares @ ₹ 708 per share as against Rs.₹ 739 adopted by the Id. AO and consequently directed the Id. AO to modify the assessment order dt.29.12.2016 by making a further addition of ₹ 1,39,810 (₹ 31 per share x 4,510 shares) u/s.56(2)(vi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... same and he noted that the AO has not determined the correct value of the allotment of shares during the impugned assessment year. Accordingly, the ld. PCIT calculated the fair-market value by applying Rule 11UA and as per prescribed formula therein. He calculated the value of shares at ₹ 708/-. Accordingly, he observed that the AO had calculated the said price excess by ₹ 31/- per share i.e. ₹ 739-708. Accordingly, further a sum of ₹ 139810(31x4510) was to be added in the total income of the assessee, therefore, the order passed by the AO was erroneous and prejudicial to the interest of revenue and he also relied on many case laws as incorporated in his order. 3. Feeling aggrieved from the order of the Pr.CIT, the assessee is in appeal before the Income Tax Appellate Tribunal. 4. Ld. AR of the assessee before us has filed written submissions which reads as under :- Brief note of submissions of the Appellant Revision Order is ante dated and barred by limitation (Ground No.2) 1. That the above Appear has been filed against the order dt. 30.03.2019 of the id Pr. CIT made u/s. 263(1) modifying the assessment order dt. 29.12.2016 made u/s. 143(3 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... age 11 to 13) Head Note Value Added Tax - Assessment - Limitation - Six months from date of receipt of Audit Visit Report - No permission obtained for extension of time - Assessment order passed after six month period - Barred by Limitation - No explanation for delay in communicating order to Dealer - Order not passed on date It bore - Order quashed - Value Added Tax Act, 2004 (4 of 2005), s. 42(2). c. ACXT v Orissa Stevedores ltd, ITA Nos. 409 to 411/CTK/2011 and CO Nos 30 to 32/201 1, Order dated 22,12.2011. (Page 14 to19) d. ACIT v. Dn Tulsi Prasad Mohapatra Dr. (Smt.) Debadutta Mallick ITA NOS. 412 413/CTK/2011 and CO. Nos. 27 2B/CTK/2011, Order dated 17.02.2012. (Page 20 to 24) e. Sri Trinath Chowdary Others v ACIT IT(S$)A Nos. 44 to 46/CTK/2016, 3, B to 10, 13 14/CTK/2017, Order dated 27.09.20IB. (Page 25 to38) Reassessment order dated 30.03,2015 served on 06.34*2015, after expiry of period of limitation on 31.03.2015, held barred by limitation, Pankaj Sharma v. DOT ITA NOS. 3556 3557/DEL/2015, Order dated 08.02.2019. (Page 39 to 51) AO dated 28.03.2013 served on 18.04.2013, after expiry of period of limitation on 31 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... CIT(A), Sambalpur electronically on 22/01/2017 against the assessment order passed u/s. 143(3) on 29/12/2016, 4. The Id. Pr. CIT has no jurisdiction to revise the FMV of equity shares allotted on 31-03.2014, when the said valuation is the subject matter of appeal filed by the Assessee and was pending when the revisional power was exercised. The revislonal jurisdiction cannot be exercised which would result in depriving the appellate authority of the power to examine the correctness of the order under appeal, when an appeal has, in fact, been filed in respect of the same matter and was pending before the appellate authority. This has been so held by the Hon'ble Madras Hugh Court in the case of CWT v. Sampathmal Chordia, Executor of Late Neni Kavur Bai (2002) 256 ITR 440 (Mad,) (Page 63)r where the revision has been held to be invalid as the subject-matter of the revision was the same as that of the pending appeal as Interpreted in Aermns Infrastructure Technology ltd, v. CZT (2004) 271 ITR 5 (Demi) (Page 64), 5. in the Ground No.3 of the appeal filed against the assessment order, the Assessee has also contended that the said order is barred by limitation an ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... id. Pr. CIT at ₹ 708 under the above sub clause (i) and respective clause (a) of Rule 11UA(2). As such, the impugned order is liable to be quashed. Moreover, it is entirely based upon change of opinion and adoption of a second view, without finding any specific error committed by the AO. The impugned revision order is, therefore, not sustainable in law vide CIT v, Max India Ltd. (2007) 295 ITR 282 (SC)(Pmgm 6S) and Malabar Industrial Co, ltd, v, CXT(20@G) X43.XTR S3 (SC) (Page 66 to 68). Non-applicability of See 56f 21fvfi ) as per explanatory memorandum to Finance Act 2012 The Appellant does not come within the mischief of the above provision as manifest from cursory look to explanatory memorandum to Finance Act, 2012 by which the said provision was brought into the law and the share premium Is a clean money and so it is not covered within the provisions of SeCr56{2)(vii }, Legislative intent is to apply the said provision where money received is not clean and is unaccounted money received in garb of share premium where as nowhere it is case of revenue that stated money is not clean money, Reliance is placed upon the ITAT Delhi Bench order dated 03.01.2020 in the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ted in the impugned order. The same may be directed to be credited. For that the impugned order has been served after the expiry of limitation u/s.153 on 12.01.2017 and as such, barred by limitation and non est in law. For that further grounds, if any, shall be urged at the time of hearing or before. We also noted from the order of AO that while calculating the value of liabilities, the assessee had not considered the value of money received under the account head share application money pending for allotment of ₹ 61 lakhs, which was standing as on 31.03.2013 and the AO has considered it as a liability, which has been challenged before the CIT(A) as stated supra in the grounds of appeal. Now, considering the arguments putforth by the ld. AR of the assessee that the Pr.CIT cannot exercise his jurisdictional power u/s.263 of the Act, if the assessee s appeal is pending before the CIT(A). It is also clear from the order sheet placed at page No.60 of the paper book, wherein it has been mentioned that the assessee had filed appeal before the CIT(A). To support this view, Explanation (c) to Section 263(1) of the Act, is reproduced hereunder :- Section 263. (1) Explan ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... issue of provision for interest on income tax and disallowed the amount of ₹ 30.14 Crore. Further, it is clearly evident from the Note No. 4, appended to the book profit under section 115JB that the amount which was directed to be disallowed, has already disallowed by AO while passing the assessment order. Once, the issue which has been examined and disallowed would be amount of taxing the same twice or for making a double disallowance. We have noted that the ld. CIT instead of verifying the facts and considering the contents of the reply of assessee straightway directed the AO by passing the following order: 6.2. On the issue of addition of interest under section 234D of ₹ 14.44 crore with book profit.: In this regard, it is observed that the interest charged under Income Tax Act including under section 234D towards withdrawal of excess refund is nothing but income tax and same is levied and accounted as such in accounts of Department, it is covered by explanation 1(a) under section 115JB (2) of the IT Act and therefore required to be added with Book Profit. 7. In nutshell, the AO is directed to pass the order as per provisions of Income Tax Act, 1961 by making i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ferent set of fact. In the said case the AO, while making the assessment by order, allowed this claim of investment allowance. Subsequently, however, the Commissioner was of the view that the order of the AO/ ITO was erroneous and prejudicial to the interests of the revenue. Thus, there was no disallowance of claim by AO, rather the claim of assessee was allowed. Further, there was no occasion in said case for taking the issue in appeal, being order of AO was favourable to the assessee. However, in the case in hand the same subject matter is in appeal, which is revised by ld. CIT. 16. In view of the aforesaid facts and legal discussion, we are of the view that once the issue was examined by AO and disallowed while passing the assessment order and the same is subject matter of appeal before the ld. CIT(A), the ld. CIT was not justified in revising the assessment order, therefore, the assessee succeeded on his primary/first contention. Considering the fact that we have accepted the primary/first contention of ld. AR of the assessee, therefore, discussion on other alternative submission has become academic. We may made it clear that we have examined the validity of order passed ..... X X X X Extracts X X X X X X X X Extracts X X X X
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