TaxTMI 
TaxTMI 
2015 (5) TMI 848
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....; "Dr. Pal's client approached the Tribunal challenging the order passed under section 263 and even did not pray for any interim relief for stay of operation of the said order and allowed the order of assessment to be passed. Ultimately an appeal was also preferred. The legal proposition explained by Dr. Pal would be appropriate when it would be found that the authority concerned lacks inherent jurisdiction in the subject matter. In this case it cannot be held CIT had no jurisdiction. The question is whether assumption of jurisdiction is done by the said authority on being satisfied with the twin conditions mentioned therein. This question could and can be examined in many ways. When assessee did not take any step for stay of the order of the Assessing Officer pursuant to the impugned order of the CIT under section 263 and after having participated in the hearing of the assessment proceedings and consequently preferring appeal, we think it would not be proper for this Court at this stage to decide issue raised before us. Accordingly, we accept the submission of the learned counsel for the Revenue that the appe....
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....ential criteria of appellate jurisdiction is, that it revises and corrects the proceedings in a cause already instituted or does not create that cause. In reference to judicial tribunal an appellate jurisdiction, therefore, necessarily implies that the subject matter has already been instituted and acted upon by some authority, whose proceedings are to be revised. Ld. Counsel stated that right of appeal is not merely matter of procedure rather it is a matter of substantive right. This right of appeal from a decision of an inferior authority to a superior authority becomes vested in a party when proceedings are first initiated in and before a decision is given by the inferior authority. Ld. Counsel for the assessee also relied on the decision of Hon'ble Madhya Pradesh High Court in the case of Smt. Shantibai Vs. CIT (1984) 148 ITR 49 (MP) wherein Hon'ble court has observed that just as an appeal being a creature of the statute would not lie unless it is provided by the statute, the right so conferred cannot be taken away merely because some other remedy is also available to the assessee. Ld. Counsel for the assessee, however, contested the claim made by Ld. CIT, DR and stated that H....
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....on to a case where the right of appeal granted is a conditional one. In the present case before us, assessment was framed by DCIT Circle-I Kolkata u/s.143(3) of the Act for the relevant AY 2008-09 vide his order dated 20-12-2010. Subsequently, the CIT from examination of records prima facie observed that there is error in the order of the assessment in not disallowing unpaid excise duty and not making addition of value of goods being stock in transit thereby the assessment order is prejudicial to the interest of Revenue also. The CIT revised the assessment u/s. 263 of the Act vide his order dated 28-03-2013. It means that it is proved conclusively that 'lis' has commenced from the date of order passed u/s 263 of the Act by the CIT i.e., on 28-03-2013. 5. Now the question arises whether the right so conferred by the statute can be taken away merely because alternative remedy is also available to the assessee. This has been answered by Hon'ble Madhya Pradesh High Court in the case of Smt. Shantibai (supra), as cited by Ld. counsel for the assessee, wherein it is held as under:- "We may, in this c....
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....abandoned, it cannot be held that the assessee has abandoned or lost such right by implication. In the case of Ramanlal Kamdar [1977] 108 ITR 73 (Mad), the assessee through its partner appeared before the Income-tax Officer and stated that the assessee had no objection to the proposed revision. In the instant case, the assessee never appeared nor accepted the proposed assessment at the draft stage. The decision is distinguishable from the instant case on facts. The decision in M.K. Industries' [1979] 119 ITR 286 (All) has no application in the facts of the instant case as the said decision is on the question of allowability of a writ petition in the facts of that case. For the reasons as aforesaid, we answer question No. 3 in the affirmative and against the Revenue." 6. To sum up this issue, a right of appeal being a sustentative right, the institution of a suit carries with it the implication that all successive available with law then in force would be preserve to the parties to the suit throughout the career of the suit. Hence, in the present case before us, the appeal filed by assessee against the revision order passed by CIT u/s 263 of the Act, a statutory right is avail....
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....nexure 9 of the Balance Sheet that this amount of unpaid excise duty of Rs. 35.43 lacs pertains to earlier years and no new provision is made. Ld. Counsel for the assessee now before us also filed the copy of assessment order passed in consequence to revision order u/s. 263 of the Act wherein the AO has clearly observed after verifying the records that this excise duty of Rs. 35,43,390/- was actually outstanding balance of pre-existed unpaid excise duty relevant to AY 1997-98 out of total sum of Rs. 1,04,79,687/- which was disallowed u/s. 43B of the Act. Ld. Counsel for the assessee drew our attention to page 13 of assessee's paper book, which is copy of annexure 9 as certified by Sr. Manager, (Finance, taxation) of the assessee company and the statement showing the details in respect of sum referred to in clause (a), (c) and (d) of section 43B of the Act as required under the audit provisions. Relevant chart reads as under: NATURE OF LIABILITY PRE-EXISTED ON THE FIRST DAY OF THE PREVIOUS YEAR BUT WAS NOT ALLOWED IN ANY PRECEDING YEAR INCURRED IN THE PREVIOUS YEAR BALANCES PAID DURING THE YEAR 2007-08 NO LONG REQUIRED NOT PAID DURING THE PREVIOU....
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....lue thereof was not debited in the P&L Account. Hence, the very basis is without the authority of law the revision order is likely to be quashed. 10. We have heard rival submissions and gone through facts and circumstances of the case. In respect to the first aspect we find that the AO after verifying various details has required the assessee to explain return of income. The assessee filed details and the same were discussed. The CIT subsequently on examination of assessment records noted that assessment order passed by the AO is erroneous and prejudicial to the interest of revenue since the AO has omitted to disallow unpaid excise duty amounting to Rs. 35.43 lacs resulting in under assessment of tax. The assessee explained before the CIT that there is no fresh provision made in respect of unpaid excise duty of Rs. 35.43 lacs. Even now before us, assessee drew our attention to annexure 9 of the Balance Sheet that this amount of unpaid excise duty of Rs. 35.43 lacs pertains to earlier years and no new provision is made. Ld. Counsel for the assessee now before us also filed the copy of assessment order passed in consequence to revision order u/s. 263 of the Act wherein the AO has ....