TMI Blog1980 (7) TMI 73X X X X Extracts X X X X X X X X Extracts X X X X ..... ng to this reference are as follows: The assessee is public limited company. For the assessment year 1965-66, the original order of assessment was passed by the ITO on October 7, 1969. The total income which was considered for assessment was Rs. 1,58,18,442. This assessment was reopened under s. 147 and the order in reassessment proceedings was made on March 25, 1971, by the ITO. In the reassessment proceedings, besides the income originally assessed, an amount of Rs. 68,882 was added on account of education cess for the reasons discussed in the reassessment order made under s. 143(3) read with s. 147(b) of the I.T. Act, 1961. Subsequently, that is, on September 30, 1971, the Additional Commissioner issued a notice to the assessee to show c ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s of s. 263(2)(a). In arriving at this conclusion the Tribunal found that the question of allowance of the provision for interest payable to Bakubhai Ambalal Ltd. was the subject-matter of consideration in the original assessment order passed in this case on October 7, 1969, as also in the reassessment order under s. 147 passed on March 25, 1971, and the order of the Addl. Commissioner under s. 263 passed on October 4, 1971. The Tribunal held that the proceedings under s. 263 taken up by the Addl. Commissioner were in respect of identical items of interest payable to Bakubhai Ambalal Ltd., which formed the subject-matter of reassessment proceedings under s. 147 even though the amount may not have been disallowed in such reassessment. In ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he interest payment to Bakubhai Ambalal Ltd. while passing the order after reopening the assessment. In the order dated March 25, 1971, which was passed by the ITO in reassessment proceedings, he did not in terms refer to the interest payment to Bakubhai Ambalal Ltd. but he mentioned: " Income as per original order including interest, securities and dividends Rs. 1,58,18,442." Thus, it is obvious that at the time of reassessment proceedings, the question of interest payment to Bakubhai Ambalal Ltd. was processed by the ITO. Though there is no specific mention or discussion about this item in the ITO's order passed in reassessment proceedings, he must be deemed to have impliedly processed this particular item of expenditure which was c ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... or cancelling the assessment and directing a fresh assessment. Under sub-s. (2)(a) it has been provided that no order shall be made under sub-s. (1) to revise an order of reassessment made under s. 147. It is obvious, as the Tribunal has rightly pointed out that when the Addl. Commissioner's attention was drawn to the reassessment proceedings and what happened in the course of the reassessment proceedings, he should have taken note of the fact that the item of Rs. 6,43,500 formed part of the decision of the ITO in reassessment proceedings and since that is the only possible conclusion on the facts of this case, the Tribunal was right in coming to the conclusion that in view of the provisions of s. 263(2)(a), the Commissioner had no power to ..... X X X X Extracts X X X X X X X X Extracts X X X X
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