9911796707
TMI Blog2023 (9) TMI 556X X X X Extracts X X X X X X X X Extracts X X X X ..... usiness in PVC pipes. It is an assessee under the Income Tax Act, 1961 (for brevity, 'Act'). (ii) The petitioner had filed its return of income for the assessment year 2017-2018 declaring a total income of Rs. 65,12,480/-. (iii) The return was taken up for scrutiny and the assessment was completed on 16.12.2019, by Ext P1 order, under Sec. 143(3) of the Act. (iv) Aggrieved by Ext P1 Assessment Order (A.O), the petitioner has preferred a statutory appeal before the Commissioner of Income Tax (Appeals) (for brevity, 'CIT(Appeals)') and the matter is sub-judice. Ext P2 is the acknowledgment slip. (v) While so, the petitioner was served with Ext P3 notice by the first respondent stating that he was proposing to reopen Ext P1 A.O und ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... g the correct rate of tax applicable to the additions by way of income made in the assessment. The petitioner has challenged only the additions made to the total income in the A.O. Therefore, the jurisdiction exercised by the first respondent is in consonance with the provisions of Sec. 263 of the Act. The writ petition is devoid of any merits and is liable to be dismissed. 4. The petitioner has filed a reply affidavit denying the assertions in the statement. It is asserted that Explanation I (c) of sub-sec.(1) of Sec. 263 of the Act has two limbs. The first limb deals with while the matter is sub-judice before the First Appellate Authority and the second one deals with when the matter has been decided in the appeal. Hence, in those matter ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... usly defended Ext P5 order and argued that the first respondent has unbridled powers to revise an order passed by the assessing authority, during the pendency of an appeal under Sec. 263 of the Act, when it is noticed that the Assessing Officer has committed a patent illegality. He argued that as the assessing authority had applied the wrong rate of tax, it is well within the domain and powers of the first respondent to exercise his revisional powers. He submitted that the petitioner has an alternative and efficacious statutory remedy. Hence, no prejudice will be caused to the petitioner. He placed emphasis on the decisions of the Honourable Supreme Court in Commissioner of Income Tax vs. Shri.Arbuda Mills Ltd. [(1998) 231 ITR 50 (SC)], Com ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... led in the writ petition. 13. Sec. 263 of the Income Tax Act reads thus: 263 (1) .The Principal Chief Commissioner or Chief Commissioner or Principal Commissioner or Commissioner may call for and examine the record of any proceeding under this Act, and if he considers that any order passed therein by the Assessing Officer is erroneous in so far as it is prejudicial to the interests of the revenue, he, may, after giving the assessee an opportunity of being heard and after making or causing to be made such inquiry as he deems necessary, pass such order thereon as the circumstances of the case justify, including an order enhancing or modifying the assessment, or cancelling the assessment and directing a fresh assessment. Explanation I - ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... h appeal. (a) the order is passed without making inquiries or verification which should have been made; (b) the order is passed allowing any relief without inquiring into the claim; (c) the order has not been made in accordance with any order, direction or instruction issued by the Board under section 119; or (d) the order has not been passed in accordance with any decision which is prejudicial to the assessee, rendered by the jurisdictional High Court or Supreme Court in the case of the assessee or any other person.". (2). No order shall be made under sub- section (1) after the expiry of two years from the end of the financial year in which the order sought to be revised was passed. (3). Notwithstanding anything contained ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... issioner could pass an order under section 263 another question may arise on the ground of merger of the order of the Income-tax Officer in the appellate order. But that question does not arise before us for the interference in this case had been during the pendency of the appeal and before it was disposed of by the Appellate Assistant Commissioner. We must not, therefore, examine that question. (emphasis given) 15. In Commissioner of Income Tax vs. Shri. Arbuda Mills Ltd (supra), the Hon'ble Supreme Court has held as follows: "The consequence of the said amendment made with retrospective effect is that the powers under Section 263 of the Commissioner shall extend and shall be deemed always to have extended to such matters as had not ..... X X X X Extracts X X X X X X X X Extracts X X X X
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