TaxTMI 
TaxTMI 
2015 (2) TMI 199
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.... cannot be treated as order of assessment and therefore, the limitation for the purpose of section 263 will reckon from the date of assessment order passed under section 147 r.w.s. 143(3). The ld. AR has submitted that the view taken by the Tribunal is contrary to the view taken by the Hon'ble Jurisdictional High Court in the recent judgment in the case of CIT vs. M/s. Lark Chemical Ltd. IT Appeal No.2426 of 2011 along with IT Appeal No.2427 of 2011 and IT Appeal No.2440 of 2011 dated 06/08/2013. The ld. AR has relied upon the judgment of Hon'ble Supreme Court in the case of ACIT vs. Saurashtra Kutch Stock Exchange Ltd. (305 ITR 227) and submitted that Hon'ble Supreme Court has held that non consideration of the decision of Hon'ble Jurisdictional High Court or Hon'ble Supreme Court is a mistake apparent from record and is rectifiable under section 254(2) of the Act. Thus, the ld. AR has submitted that in view of the latest decision of the Hon'ble Jurisdictional High Court in case of M/s. Lark Chemicals Ltd. supra, there is a mistake apparent in the impugned order of the Tribunal and the same should be rectified. 3. On the other hand the ld. DR has submitted....
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....ection 263 stipulates the power of the CIT to revise the order passed by taxing authorities under the provisions of the Act. For ready reference, we quote the section 263: "263. (1) The 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." 7.1 Sub.sec. 2 of sec. 263 prescribe the limitation for invoking the powers and jurisdictions by the CIT. It is manifest from the provisions of sec. 263 that the CIT can exercise revision power against the order passed by the Assessing Officer, if the two conditions as erroneous and prejudicial to the interest of reven....
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....which is impermissible by the information given in the return could be made by the Assessing Officer. The reason is that under section 143(1)(a) no opportunity is granted to the assessee and the Assessing Officer proceeds on his opinion on the basis of the return filed by the assessee. The very fact that no opportunity of being heard is given under section 143(1)(a) indicates that the Assessing Officer has to proceed accepting the return and making the permissible adjustments only. As a result of insertion of the Explanation to section 143 by the Finance (No. 2) Act of 1991 with effect from October 1, 1991, and subsequently with effect from June 1, 1994, by the Finance Act, 1994, and ultimately omitted with effect from June 1, 1999, by the Explanation as introduced by the Finance (No. 2) Act of 1991 an intimation sent to the assessee under section 143(1)(a) was deemed to be an order for the purposes of section 246 between June 1, 1994 and May 31, 1999, and under section 264 between October 1, 1991, and May 31, 1999. It is to be noted that the expressions "intimation" and "assessment order" have been used at different places. The contextual difference between the two expressions has....
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....he hon'ble Supreme Court in the case of Assistant CIT v. Rajesh Jhaveri Stock Brokers P. Ltd. [2007] 291 ITR 500. Two expressions "assessment" and "intimation" have been inter-preted by their Lordships as used in section 143(1)(a) of the Act. The afore-mentioned exposition of law has flowed from the amendment substituting the word "intimation" for "assessment" with effect from June 1, 1999. The view of the Hon'ble Supreme Court in that regard reads as under (page 508) " 7.4 Further, the Ahmedabad Bench of the Tribunal in the case of Vijay Kumar Gupta (supra) by following the decision of the Special Bench of the Tribunal in the case of Simbhaoli Industries Pvt. Ltd. v. Deputy Commissioner of Income-tax (Assessment) reported in 251 ITR 35 (Del)(SB) (AT) as well as the decision of the Hon'ble Gujarat High Court in the case of Commissioner of Income-tax v. Vikrant Crimpers reported in 282 ITR 503 held as under: "8. However, considering the facts of the case in the light of the above discussions it is clear that in the present case the original intimation/assessmen....
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....judicated the issues which are subject matter of impugned revision order and consequently, whether the impugned revision order is barred by limitation so far as on the issues which are not related to the grounds of reassessment and reassessment. Since there is no original assessment in the case in hand and the reassessment is the first order of assessment by the Assessing Officer; therefore, the Assessing Officer was expected to apply his mind on all the issues to see whether the income chargeable to tax has escaped assessment. The Assessing Officer ought to have exercised due diligence and minimum enquiry as expected from ordinary prudent person acting as a quasi judicial authority being an Assessing Officer. Once the assessment has been reopened, the Assessing Officer was expected to follow all the relevant general provisions for framing the assessing as in the case of regular assessment and find out whether any income chargeable to tax has escaped assessment or not. 10 In the case in hand, the assessee has not challenged the disallowance as proposed in the revision order by the CIT on merits but has challenged t....
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....g assessment and regular assessment because the provisions generally provide for issue of notice, hearing of the assessee and taking of evidence, etc., which are the same for regular assessment and income escaping assessment. Therefore in the course of income escaping, assessment, if it comes to the notice of the Assessing Officer that any other item or items of income other than the item of escaped income for the assessment of which, assessment originally completed was reopened, also have escaped from original assessment, he is bound to assess such item or items of income also in the course of reassessment under section 147. In view of the specific provision providing for assessment of other items of income that have escaped assessment, and that comes to the notice of the Assessing Officer in the course of income escaping assessment, the reassessments made are valid and the orders of the Tribunal to the contrary are not sustainable. Standing counsel for the Revenue has brought to our notice the decision of the Supreme Court in Asst. CIT v. Rajesh Jhaveri Stock Brokers P. Ltd.[2007] 291 ITR 500 wherein the Supreme Court has held that at the stage of issue of notice under section ....
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....mpossible claim establishes the non application of mind on the part of the Assessing Officer during the reassessment proceedings and consequently render the order passed u/s 147 r.w.s 143(3) as erroneous and prejudicial to the interest of revenue. 13 Now coming to the question of limitation as provided under sub.sec. (2) of sec. 263. 13.1 The assessee has contended that the limitation would reckoned from the original order - {in this case, processed u/s 143(1)} - for exercising the jurisdiction u/s 263 in respect of the issues which are not subject matter of the reassessment u/s 147. 13.1 It is settled proposition of law that the limitation for exercising the jurisdictional u/s 263 on such issues which are not subject matter of reassessment order would be counted from the original assessment as held by the Hon'ble Supreme Court in the case of CIT vs Alagendran Finance Ltd reported in 211 CTR 69(SC). 14 There is no original assessment in this case and as we have already held that the Assessing Officer was expected to ....