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TMI Blog2024 (7) TMI 900X X X X Extracts X X X X X X X X Extracts X X X X ..... rectification order but still held that the order passed u/s. 143(3) r.w.s. 144B of the Act dated 19.04.2021 was liable to be revised. At the outset, it was the submission that the same was not permissible in view of the decision of the Hon'ble Madhya Pradesh High Court in the case of CIT Vs. Kalyan Solvent Extraction Ltd., reported in (2005) 276 ITR 154 (MP), wherein the Hon'ble Madhya Pradesh High Court has categorically held that the original order was subjected by the AO to rectification u/s. 154 of the Act, then such original order was no more amenable to revision and it was only order passed u/s. 154 of the Act, which could be revised. The Hon'ble Madhya Pradesh High Court in para 7 & 8 has categorically held as follows :- 7. It is not in dispute that on the date 21st March, 1989, when the Commissioner sought to exercise his suo motu revisional powers under s. 263 of the Act against the assessment order dt. 13th March, 1987, the same was already rectified by the AO on 14th March, 1989, under s. 154 of the Act. In this view of the matter, the Commissioner had no jurisdiction to set aside that order which stood already rectified. In other words, the Commissioner could at bes ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... and to draw appropriate conclusion. In this case, the assessee has complied by producing all the evidences as called for insofar as the compliance report which is a system generated report shows that the compliance is in full. Thus, this cannot be said that there is "lack of enquiry" by the AO much less "inadequate enquiry" and far less "no enquiry". A perusal of the order passed u/s. 263 of the Act shows that the ld. CIT(E) has taken the total revenue earned at Rs. 855,46,22,497/-, this amount is inclusive of Rs. 111 crores as development fees collected by the assessee from the students. When doing the computation, the ld. CIT(E) in page 2 of his order has granted 15% accumulation u/s. 11(1) of the Act, he has not taken into consideration the capital expenditure which is an application of Rs. 258 crores. If this capital expenditure, which is application of income of Rs. 258 crores, is taken into consideration, the taxable income as computed by the ld. CIT(E) in page 2 of his order, would automatically go into a loss. It would absorb even the accumulation of 15%, which he has granted to the assessee. A perusal of the page 5 of the order of the ld. CIT(E) shows that the assessee has ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... here there is incorrect application of law. This being so, we are of the view that the principle of law laid down by the Hon'ble Jurisdictional High Court of Orissa in the case of Orissa State Police Housing & Welfare Corporation Ltd (supra), is squarely applicable in the case of present assessee, insofar as there is no enquiry done by the ld. CIT(E) after receipt of the reply filed by the assessee. This view of ours also support by the decision of the coordinate bench of the Tribunal in the case of Saroj Kumar Mishra (supra) and in the case of M/s Earth Minerals Co. Ltd., in ITA No.223/CTK/2019, order dated 29.08.2022. In these circumstances, we are of the view that the order passed by the ld. CIT(E) is unsustainable and consequently, the same stands quashed. 4. It was further submitted that the order of the Tribunal was the subject matter of an appeal by the Revenue before the Hon'ble High Court of Orissa in ITA No.38 of 2023 and vide order dated 02.03.2023, the Hon'ble Jurisdictional High Court had upheld the order of the Tribunal holding as follows :- 4. The Assessee is a Trust running an educational institution. The original assessment for the aforementioned AY came to ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... mediately preceding assessment year and consequently under the guise of an enquiry, the ld. CIT(E) called for the explanation of the assessee. The assessee has specifically submitted before the CIT(E) that the development fund had been specifically offered as income of the assessee and to prove this the details and comparison of the income between the IT Return and the annual financial report for the Financial Year 2017-2018, had already been placed before the ld. CIT(E), the same was shown at page 32 of the paper book which is as follows :- 6. It was the submission that without considering these evidences, the ld. CIT(E) in para 15.2 has held that the assessee could not satisfactorily establish the claim of the application of income of Rs. 940,24,12,653/- and it needed detailed verification through reassessment. It was the submission that the fact that the ld. CIT(E) has mentioned detailed verification and also says that it should be done through reassessment clearly shows that the ld. CIT(E) was aware that proper verification had been done but only a fishing and roving enquiry is now been attempted under the guise of a revision u/s. 263 of the Act. It was the submission that the ..... X X X X Extracts X X X X X X X X Extracts X X X X
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