TMI Blog2022 (6) TMI 1321X X X X Extracts X X X X X X X X Extracts X X X X ..... o the AO to be processed in the reopened assessment. Failure on the part of the AO to examine the same and form an opinion on the issue established that, when the difference was so glaring, has clearly made the order erroneous and consequently prejudicial to the interest of the revenue. This being so, as the AO has not applied his mind to the information that has been supplied by the assessee nor he has considered such information nor formed an opinion in respect of such information, the ld CIT, Bhubaneswar was right in invoking his powers u/s.263 of the Act in revising the assessment order passed u/s.143(3)/147 of the Act dated 30.3.2013 in the case of the assessee. A query was raised to ld AR as to what happened to the consequential order passed in pursuance to order u/s.263 of the Act, to which, ld AR submitted that consequential order has been passed and the appeal had been filed to the ld CIT(A). The ld CIT(A) has dismissed the same exparte. Further appeal had been filed to the Tribunal and the Tribunal had also exparte restored the issue back to the file of ld CIT(A). A very interesting fact on this issue established that even before the CIT(A), the appeal was dismis ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... to whether this issue arises out of the order of the ld CIT. Ld counsel admitted that the issues does not arise out of the order of the Ld CIT, Bhubaneswar. To this, he was informed that if the issue does not arise out of the order of the ld CIT how the Tribunal can adjudicate on that issue. Ld counsel again submitted that let the matter be referred. 4. Replying to above, ld CIT DR has filed a response to the said application, wherein, he has mentioned that no such notification has been issued till now and the last date for such notification has been fixed on 31.3.2023. 5. We have considered the rival submissions of both the sides on this issue. Primarily, the issue does not arise out of the order of ld CIT and admittedly, it ought not to be considered by this Tribunal. However, as this is an issue of jurisdiction that has been raised and the Tribunal is questioned on its own jurisdiction, the following answer is being placed: i) The question of jurisdiction of an appellate authority cannot be raised to the appellate authority itself. It has to be raised to other competent constitutional forum. ii) The word used in section 255(7) is may . The prerogative to make the pr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hat it was mentioned that the said balance was also considered by the AO while making subsequent assessment u/s.143(3)/147 of the Act, for which, no addition has been made as the disclosure made in the return for consideration of work in progress, sundry creditors, loans and advances and current liabilities has been considered by the AO in both the cases i.e. in making assessment u/s.143(3) read with section 153A of the Act dated 31.12.2009 and u/s.143(3)/147 of the Act dated 30.3.2013 . It was the submission that as all the details had been produced before the AO and as no addition has also been contemplated much less the show cause notice issued in the reopened assessment, it cannot be said that there was an error in the order of the Assessing Officer, which call for invoking the powers of revision u/s.263 of the Act. It was the submission that even if the AO proposes to make the addition in the reopened assessment, it would have been on the basis of change of opinion and if the AO cannot make the addition in the reopened assessment on account of change of opinion, same cannot be done u/s.263 of the Act as it would also be on the basis of change of opinion. It was the submission ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... idering such information with due application of mind if and when such information is actually provided by the Assessee. 9. It was the submission that just because the details had been called for by the AO it does not mean that the AO has applied his mind to this issue. The fact that there is no discussion on the issue clearly shows nonapplication of mind by the AO and, there was no opinion formed by the AO on the issue. It was the submission that the order of the ld CIT passed u/s.263 is liable to be upheld. 10. We have heard the rival submissions. A perusal of the order u/.s.263 of the Act in the present case clearly shows that the main crux of the arguments by ld AR before the ld CIT is that what the AO could not do u/s.147 of the Act could not be done in the guise of revision proceedings u/s.263 of the Act. To this extent, we are in full agreement with ld AR of the assessee. But the question here is, what is it that the AO could not do u/s.147 of the Act. When the details were before the AO and the AO has not adjudicated on the issue when such glaring difference are there, especially when he has made valid reopening, it cannot be said that the AO did not have power to go ..... X X X X Extracts X X X X X X X X Extracts X X X X
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