2018 (7) TMI 1639 - AT - Income Tax

Appeals allowed by Tribunal against revision orders for tax years 2011-12 & 2012-13 due to lack of jurisdiction.

Vishnu Tea And Industries Pvt. Ltd. Versus Deputy Commissioner of Income-tax, Circle -4 (2), Kolkata

The Tribunal allowed the assessee's appeals and set aside the revision orders issued by the Principal Commissioner of Income Tax-2, Kolkata for the ... Revision u/s 263 - CIT found fault with the assessment order in respect to assessee’s claim for deduction u/s. 80IE of the Act, computation of tax liability u/s. 115JB and payment of tax u/s. 115O - Held that:- As the issues which has been set aside by the Ld. Pr. CIT for fresh adjudication of AO vide impugned order dated 30.03.2017 has already merged with the order of the Ld. CIT(A) so, the Ld. Pr. CIT lacks jurisdiction to interfere with the order on the issues that has already merged with the order of the Ld. CIT(A) dated 20.07.2016. Coming to AY 2012-13. We note that all the three identical issues discussed above which has been remitted by the Ld. Pr. CIT has been taken cognizance by the Ld. CIT(A) in the regular appeal preferred by the assessee well before the Ld. CIT issued the SCN conveying his desire to invoke revisional jurisdiction u/s. 263 of the Act, therefore, as per the clause (c) to Explanation (1) of sec. 263 the subject matters of all the three issues was already under appeal before the Ld. CIT(A) and, therefore, the Ld. CIT does not enjoy revisional jurisdiction u/s. 263 to interfere on these issues which is under appeal before the Ld. CIT (A). Therefore, we find merit in the appeal of the assessee and we quash both the impugned orders of the ld. Pr. CIT. Thus, both the appeals of the assessee are allowed. Issues:1. Revision order passed by Ld. Pr. CIT-2, Kolkata under section 263 of the Income-tax Act, 1961 for AYs 2011-12 and 2012-13.Analysis:The Appellate Tribunal ITAT Kolkata dealt with appeals filed by the assessee against the revision order of Ld. Pr. CIT-2, Kolkata under section 263 of the Income-tax Act, 1961 for AYs 2011-12 and 2012-13. The Tribunal noted that the Ld. Pr. CIT found fault with the assessment order regarding the assessee's claim for deduction under section 80IE, computation of tax liability under section 115JB, and payment of tax under section 115O. The Ld. Pr. CIT directed the Assessing Officer to conduct a fresh assessment after a detailed inquiry and providing the assessee with an opportunity to be heard. The Tribunal observed that the issues raised by the Ld. CIT had already been decided by the Ld. CIT(A) in an appellate order dated 20.07.2016. As per the explanation to section 263, the Tribunal held that the Ld. Pr. CIT lacked jurisdiction to interfere with matters that had merged with the Ld. CIT(A)'s order.In the case of deduction under section 80IE, the Ld. CIT(A) held in favor of the assessee, stating that the AY 2011-12 was the 3rd year for the claim, not the 4th year as contended by the AO. The Ld. CIT(A) also addressed the computation of tax liability under section 115JB, ruling in favor of the assessee based on previous decisions for preceding AYs. Regarding payment of tax under section 115O, the Ld. CIT(A) relied on a judgment of the Calcutta High Court and the Supreme Court, directing the Ld. AO to impose tax only on 40% of the dividend, in line with the court rulings.For AY 2012-13, the Tribunal found that the issues raised by the Ld. Pr. CIT had already been considered by the Ld. CIT(A) in the regular appeal filed by the assessee before the revision order was issued. Therefore, the Tribunal concluded that the Ld. Pr. CIT did not have the jurisdiction to interfere with matters already under appeal before the Ld. CIT(A). Consequently, the Tribunal allowed the appeals of the assessee and quashed the impugned orders of the Ld. Pr. CIT for both AYs 2011-12 and 2012-13.