2012 (2) TMI 210 - AT - Income Tax

Appeal Allowed as Notices were Time-Barred, CIT Order Void.

The Tribunal allowed the appeal, holding that the notices issued under Section 263 were time-barred, making the CIT's order void-ab-initio. The Tribunal ... Revocation - Assessment under 143 - Income calculated under normal provision of act - profit on sale of investment excluded - Book Profit under 115JB higher - CIT: assessment do not put finality to Book profit, invoked 263 - Held That:- In view of CIT vs. Hemraj Udyog (2002 - TMI - 12196 - RAJASTHAN High Court), Commissioner of Income Tax has power to revise the order of the AO on the issues which were not taken in appeal before the CIT. But if the limitation has expired, the CIT cannot revise the original order of the AO beyond the period of limitation. Since in the instant case, AO passed order on 28.03.2006, notices issued by the CIT u/s.263 on 17.11.2009 and 01.02.2010, therefore, the notices issued u/s. 263 are clearly beyond the period of limitation. Issues Involved:1. Jurisdiction under Section 263 of the Income Tax Act.2. Inclusion of profit on sale of investment in the book profit computation under Section 115JB of the Income Tax Act.3. Barred by limitation for issuing notice under Section 263.Detailed Analysis:Jurisdiction under Section 263 of the Income Tax Act:The assessee challenged the order of the CIT in assuming jurisdiction under Section 263 of the Income Tax Act. The CIT observed that the AO failed to compute the book profit under Section 115JB by not including the profit on the sale of investment. The CIT considered the final order of the AO dated 24.04.2007, which included the effect of assessment orders and rectification orders, as erroneous and prejudicial to the interest of the revenue. The CIT rejected the assessee's contention that full disclosure in the return of income and during assessment proceedings confers immunity from revisional jurisdiction.Inclusion of Profit on Sale of Investment in Book Profit Computation under Section 115JB:The assessee argued that the profit on the sale of investment should not be included in the book profit computation under Section 115JB. The CIT observed that the AO did not compute the book profit under Section 115JB by including the profit on the sale of investment, making the order erroneous and prejudicial to the revenue. The CIT directed the AO to pass the appeal effect order afresh, including the profit on the sale of investment.Barred by Limitation for Issuing Notice under Section 263:The assessee contended that the notice issued under Section 263 was barred by limitation since the order passed under Section 143(3) was dated 28.03.2006, and the statutory period for issuing notice under Section 263 expired on 31.03.2008. The CIT rejected this contention, stating that the intended revision under Section 263 was against the last and final order of the AO dated 24.04.2007. However, the Tribunal held that the period of limitation in the instant case expired on 31.03.2008, making the notices issued under Section 263 beyond the statutory limitation period of two years. The Tribunal relied on judicial pronouncements, including CIT vs. Hemraj Udyog and CIT vs. Alagendran Finance Ltd., to conclude that the revision order of the CIT was barred by limitation and void-ab-initio.Conclusion:The Tribunal allowed the appeal filed by the assessee, holding that the notices issued under Section 263 were barred by limitation, and the order passed by the CIT under Section 263 was void-ab-initio. The grounds raised by the assessee were accordingly allowed.