TaxTMI 
TaxTMI 
2016 (6) TMI 458
X X X X Extracts X X X X
X X X X Extracts X X X X
....d. CIT erred in not dealing with all the submissions and queries of the Appellant during the proceedings u/s. 263. 4. For that the Ld. CIT erred in law and facts in disallowing foreign currency gain of Rs. 1,76,44,053/- u/s. 80IA of the Income Tax Act, 1961 on grounds different from that proposed in the notice u/s. 263 of the Act. 5. For that the Ld. CIT erred in law and facts in initiating proceedings u/s. 263 of the Income Tax Act, 1961 without appreciating the fact that the order passed by the Assessing Officer ( herein after referred to as Ld. AO) u/s. 143(3) was neither erroneous nor prejudicial to the interest of the revenue." 3. The brief facts of the case are that the assessee is a manufacturing company generates power and energy and filed its income declaring at Nil after claming deduction u/s. 80IA(4) of the Act. Having selected for scrutiny, notices u/s. 143(2)/142(1) of the Act were issued to assessee. 4. During such scrutiny proceedings, the AO found interest income earned on surplus amounts which were invested as deposits for small duration with assessee's main banker and treated the same as income from other sources. Secondly, the AO disallowe....
X X X X Extracts X X X X
X X X X Extracts X X X X
....section 263 of the Income Tax Act, 1961 was proposed to be taken and notice under section 263 of the Income Tax Act, 1961 was issued. b) The assessee vide his submission dated 12.03.2013 submitted that the Rs. 1,76,44,053/- included in the income and has been offered for tax. But the fact is that, the assessee included that amount of Rs, 1,76,44,053/ - in his Gross Total Income and then claimed deduction under section 80lA on that amount also. So, factually that amount was not offered to tax as claimed by the assessee. The question is whether this amount being the foreign currency gain is the eligible business profit to claim deduction under section 80IA. No submission has been made by the assessee to establish the fact that the said foreign currency gain is the part of the eligible business to claim deduction under section 80lA on that amount. As the said foreign currency gain is not the profit and gains from industrial undertaking or enterprises engaged in infrastructure development, the amount of Rs. 1,76,44,053/- is not eligible for deduction under section 80IA. c) Accordingly deduction under section 80IA allowed on foreign currency gain amounting to Rs. 1,76,....
X X X X Extracts X X X X
X X X X Extracts X X X X
....t. The CIT having jurisdiction under revisionary powers u/s. 263 of the Act said to have passed an order on 28-03-2013 with a finding that the order of AO is erroneous and prejudicial to the interest of revenue. A perusal of the order as it clearly shows that it contains two dates i.e 28-03-2013/ 01-05-2013. The Ld.AR contends that the said order was dispatched and served on it after 01-05-2013 and it is barred by limitation. The Ld. DR contends that it is within time as the CIT made such order on 28-03-2013. Sub section (2) of section 263 of the Act provides limitation for revision of order(s) u/s. 263. It is very much clear that the order u/s. 263 shall be made under sub section (1) of section 263 within the expiry of 2 years from the end of the financial year in which the order sought to be revised was passed. The period of limitation in the instant case for passing the order u/s. 263 comes to end on 31-03-2013. The order of the CIT contains the date 28-03-2013 it claimed that this is the date on which the order was passed. The same was however dispatched on 01-05-2013 only. In this regard, we may refer to the Judgement as relied by the assessee of the Hon'ble High Court of Kera....
X X X X Extracts X X X X
X X X X Extracts X X X X
....jab v. Khemi Ram AIR 1970 SC 214, B.J. Shelat v. State of Gujarat AIR 1978 SC 1109 and the earlier decision of this Court in T. R. C. No. 6 of 1981, to which the Acting Chief Justice was a party, it was stated: Any authority on which power is conferred, the exercise of which power would affect the rights of parties, is to communicate its order to the party against whom the order would operate. The mere preparation of an order or even keeping the order signed in the files of the office would not render it an effective order. an order which is operative. The exceptions are cases where there is requirement of pronouncing the orders and they are pronounced On notified dates. Then irrespective of the actual presence or otherwise of the parties, notice to the parties is assumed. In other cases, if the authority making the' order fails to communicate the order, the order could not be said 10 have been made, for communication of such order is an essential part of making such order. This is naturally so, for any authority who writes out an order and signs it is free to change it at any time before it is communicated. It is not final at all, for the authority may become wiser on....