2015 (10) TMI 1385

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.... 2. At the outset, the learned authorised representative invited our attention to paper book page 13 wherein copy of assessment order was placed and it was submitted that the assessment was completed under section 143(3) vide order dated December 17, 2011. He further took us to page 12 of the paper book where a copy of order dated December 19, 2013 passed under section 154/155 was placed. 3. The learned authorised representative submitted that the said assessment order was rectified as in original assessment proceedings, the capital gain was not computed as per the provisions of section 50C. He further took us to page 11 of the paper book where a copy of notice under section 263 was placed with a view to apprise the Bench that notice c....

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....ssioner of Income-tax should have restricted himself to the points raised in the notice under section 263. Therefore, he argued that the order passed under section 263 directing the Assessing Officer to start proceedings de novo is both illegal and devoid of merit as the necessary grievance of the Revenue had already been rectified by the order of rectification dated December 19, 2013. Therefore, it was prayed that order passed under section 263 be quashed. Reliance was placed on the following case law :             (i) CIT v. Kalyan Solvent Extraction Ltd. [2005] 276 ITR 154 (MP)            (ii) CIT v. Ansal Properties and Ind. Lt....

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....ist. The assessee in response to the notice under section 263 had brought this matter to the notice of the Commissioner of Income-tax but the Commissioner of Income-tax without considering the submissions, passed order under section 263 for initiating proceedings de novo which is not legally valid and is not based upon the facts of the present case. The hon'ble Madhya Pradesh High Court in the case of CIT v. Kalyan Solvent Extraction Ltd. [2005] 276 ITR 154 (MP), in the similar circumstances, has held as under :                  "On the date March 21, 1989, when Commissioner of Income-tax sought to exercise his suo motu revisional powers under section 263....

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....Similarly, the hon'ble Delhi High Court in the case of CIT v. Ansal Properties and Ind. P. Ltd. [2009] 315 ITR 225 (Delhi), under similar circumstances vide paragraph 15 of the order held as under (page 230) :             "The learned counsel for the assessee also supported the impugned order by stating that in view of Explanation (c) to section 263(1), it was not open to the Commissioner to have a relook into the matter under section 263 of the said Act. He submitted that because the issue of levy of surcharge had already been considered by the Commissioner of Income-tax (Appeals) in his order dated December 11, 2003 it was not open to the Commissioner to exercise his juris dict....