TMI Blog2022 (7) TMI 1406X X X X Extracts X X X X X X X X Extracts X X X X ..... s intention to do such amendment, which has the effect of enhancing or reducing a refund or otherwise increasing the liability of the Assessee, nor provided any opportunity of being heard to the Assessee, while passing an order u/s. 154 of the Act, hence dents the roots of the case. On the aforesaid analyzations, we are of the considered view that the order u/s. 154 of the Act by the AO, is unsustainable being invalid and void ab initio. - ITA No. 6674/Del/2019 - - - Dated:- 26-7-2022 - SHRI N.K. BILLAIYA, ACCOUNTANT MEMBER AND SHRI N.K. CHOUDHRY, JUDICIAL MEMBER Appellant by : Shri U.N. Marwah, Ld. CA Shri Praveen Goel, Ld. Adv. Respondent by : Shri Sanjay Kumar, Ld. Sr. DR ORDER PER N.K. CHOUDHRY, J.M. This appeal has been preferred by the Assessee against the order dated 08.05.2019, impugned herein, passed by the learned Commissioner of Income-tax (Appeals)-42, New Delhi (in short Ld. Commissioner ), u/s. 250 of the Income-tax Act, 1961 (in short the Act ) for the assessment year 2012-13. 2. Brief facts, relevant for adjudication of the instant appeal, are that the Assessee had filed an application on dated 23.07.2012 before the Hon b ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sing to reduce the refund already determined; (iii) Impugned order passed wrongly referring to Application dated 23.03.2018 filed by Appellant which was already disposed off vide order dated 28.03.2018; (iv) There is no mistake which was obvious, patent not requiring application of Mind, constituting Mistake Apparent from Record to enable assumption of Jurisdiction; 5.3 Perusal of order u/s 154 of the Act dated 27.09.2018 shows that the AO has rejected the claim of refund because the return of income was not filed within the prescribed time as mentioned in section 139 of Income Tax Act. In this case, it is a fact that the appellant has not filed return u/s 139of the Income Tax Act. The return of income has been filed only in response to notice u/s 148 of the I T Act, The AO while passing the assessment order has accepted the returned income. 5.4 The AO invoked the provision under section 239(2)(c) of the Act which provides for the time limitation for claim of refund. However, the AO has taken a plea that the same are not applicable in case of Appellant because the refund is due to the appellant under section 240 of Act. The appellant submitted that Section 2 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ssment and further directed to issue notice u/s. 148 of the Act. No such power has been granted by the Act, therefore, the impugned direction of ld. CIT(A) in excess of the jurisdiction conferred by section 251 of the Act, hence, the same is set aside. Thus, ground raised by the Assessee in this appeal is allowed. We have given thoughtful consideration to the contention of the Assessee and perused the provisions of section 251 of the Act. No doubt the ld. Commissioner (Appeals) while deciding the appeal against the assessment order, having all powers to confirm, reduce, enhance or annul the assessment but having no powers to remand the case or issue to the lower authority. However as per the provision of section 251(1)(c), the ld. Commissioner is fully empowered to pass such order(s)which include remanding the case/issue to the authority below, in appeal as he thinks fit, in any other case which is not covered under sub-clause (a), (aa) and (b) of sub-section (1) of section 251 of the Act. The decision referred to by the Assessee is factually dissimilar as the same pertains to appeal against the Assessment order but not against any other order as involved in this case. Hence, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... refund of Rs.5,15,63,080/-. 4.3.1 The said application was disposed of by the Assessing Officer by passing an order dated 28.03.2018 u/s. 154 of the Act, whereby the amount of Rs.5,15,63,077/- was determined as refundable. 4.3.2 Subsequently, the very same Assessing Officer on dated 27.09.2018 passed another order on the same rectification application dated 23.03.2018 (which was already decided vide order dated 28.03.2018 u/s. 154 of the Act by the same AO) and rejected the same on the ground, since the return of income was not filed within prescribed time as mentioned in section 239 of the Act. 4.3.3 It is not the case of the department here that application dated 22.03.2018 filed by the Assessee before the Assessing Officer u/s. 154 of the Act was not decided vide order dated 28.03.2018 by the Assessing Officer u/s. 154 of the Act and/or the said order dated 28.03.2018 passed on application dated 23.03.2018 is reversed by the Higher forum or the same has not attained finality. 4.3.4 The question emerge, whether the Assessing Officer while taking refuge of section 154 of the Act, has rightly passed second order on the same application dated 23.03.2018 for rectificatio ..... 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