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TMI Blog2022 (6) TMI 1321X X X X Extracts X X X X X X X X Extracts X X X X ..... ion 255(7,8 & 9) of the I.T.Act w.e.f. 1.4.2021, the Tribunal ceases its jurisdiction to hear the appeal till the notification is issued by the Central Government in the Official Gazette in accordance with section 255(8) of the I.T.Act, 1961 for which the appellant requests the Tribunal to adjourn the case till a notification is issued in the impugned matter. When the appeal came up for hearing on 2.5.2022, ld counsel for the assessee was asked whether the appeal of the assessee could be adjourned after 31.3.2023 which was the last date for issuance of the Notification u/s 255(8) of the Act. Ld counsel for the assessee submitted that the appeal should not be adjourned to such a long date but the application could be disposed off in respect ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 provisions of section 255(7, 8 & 9) operate is exclusively in the domain of the legislature. Till such time, the notification is issued as required under section 255(8), the provisions of section 255(7) does not itself activate. The legislature in its own wisdom has option has set the date for the purpose of activating section 255(7,8 & 9) on 31.3.2023. That prerogative with the legislature is not something that can be questioned by this appella ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hown in the cash flow statement filed before the Assessing Officer. It was the submission that the assessee had filed his reply dated 25.2.2015, wherein, the assessee had challenged the action of the ld CIT. Ld A.R. has submitted that the return had been accepted by the AO and balance had been disclosed in the return has also been accepted by the AO while passing the original assessment order u/s.143(3) of the Act on 31.12.2009. It was the submission that 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 curr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... lidly reopened by the AO, then the AO could after reopening the assessment entered into other areas of other issues in the said reopened assessment and the only requirement is that the assessee should be put to notice in respect of other issues that are being proposed to be examined. He drew our attention to section 147 of the Act for this purpose. It was the further submission that there was glaring difference in the balance sheet and in the cash flow statement and it ought to have drawn the attention of the AO and the AO ought to have examined and made necessary addition. Failure on the part of the AO makes the assessment order erroneous and prejudicial to the interest of the revenue. It was the further submission that no reconciliation h ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n 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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