TaxTMI 
TaxTMI 
2017 (11) TMI 1157
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....intenance services in relation to the solutions supplied by it. 5. For the Assessment Year 2012-13, the petitioner had filed return declaring total income of 1,97,16,140/-, inter alia, applying provisions of 44BB of Income Tax Act, 1961 ('the Act'). 6. Assessing Officer (AO for short) issued notice for scrutiny assessment and thereafter issued draft assessment order dated 5th March, 2015, proposing to tax the receipts as Royalty/ Fee from Technical Services. No objections were filed and consequently the final assessment order dated 11th May, 2015 was passed by the AO u/s 144C(3)(b)/143(3) confirming the addition/ adjustment proposed in the draft Assessment Order. Total Income of petitioner for the Assessment Years was computed by applying Section 44DA of the Act at Rs. 4,92,90,360/- as against Rs. 1,97,16,140/- offered to tax by the petitioner by applying provisions of 44BB of the Act. 7. As the petitioner had not filed any objections under Section 144C(2), recourse to sub section 4 of Section 144C was not required. In other words, no directions were passed by the Dispute Resolution Panel ('DRP') in respect of the draft Assessment Order. 8. The petitioner did no....
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.... appeal for the assessment year 2012-13, for which the present application u/s. 264 has been filed instead. 7. It is further noted that the assessee's appeal for the assessment year 2011-12 has already been disposed of by the CIT(A)-2, Noida vide order dated 03.03.2016. While disposing of the assessee's appeal, the CIT(A) has upheld the action of the AO in treating the income earned by the assessee as income from Royalty and FTS, under the provisions of the Income Tax Act as well under the relevant DTAA. All the arguments advanced by' the assessee in the present application u/s 264, were also raised before the CIT(A), which have been duly considered and commented upon by the CIT(A) in his order supra. The assessee's appeals for the assessment years 2013- 14 and 2014-15 are still pending with the CIT(A). 8. A perusal of the relevant assessment records reveals that the assessment in the year under consideration has been framed by the AO in accordance with the relevant * provisions of law. There is not found to be any wrong application of legal provisions, or violation of procedure in the assessment proceedings and the final assessment order that could cause prej....
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....ty Commissioner (Appeals) or to the Commissioner (Appeals) or to the Appellate Tribunal but has not been made and the time within which such appeal may be made has not expired, or, in the case of an appeal to the Commissioner (Appeals) or] to the Appellate Tribunal, the assessee has not waived his right of appeal; or (b) where the order is pending on an appeal before the Deputy Commissioner (Appeals); or (c) where the order has been made the subject of an appeal to the Commissioner (Appeals) or to the Appellate Tribunal." In terms of Sub-section 4 to Section 264, jurisdiction to revise an order cannot be exercised under clauses (b) and (c) when the order is pending in an appeal before the Deputy Commissioner (Appeals), or when the order has been made the subject of an appeal to the Commissioner (Appeals) or to the Tribunal. Revision is also not maintainable under clause (a) to sub-section 4, when an appeal against the order lies to the Deputy Commissioner (Appeals) or Commissioner (Appeals) or to the Income Tax Appellate Tribunal ("Tribunal") but such appeal has not been filed and the time within which such appeal may be filed has also not expired. Further, for clause (a) ....
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....each Assessment Year is separate and the assessee files the return for each year and assessment order is passed. Strict principles of res judicata do not apply, though principle of consistency is applied. Commissioner cannot refuse to entertain a revision petition filed by the assessee under Section 264 of the Act if it is maintainable on the ground that a similar issue has arisen for consideration in another year and is pending adjudication in appeal or another forum. Negative stipulations are clearly not attracted. When a statutory right is conferred on an assessee, the same imposes an obligation on the authority. New and extraneous conditions, not mandated and stipulated, expressly or by implication, cannot be imposed to deny recourse to a remedy and right of the assessee to have his claim examined on merits. 17. The Jurisdictional Commissioner no doubt is an administrative authority to the subordinate officers including assessing officer, nevertheless the Act has conferred revisionary power on the said Commissioner. He cannot refuse to exercise the said power because the assessing officer was his subordinate and under his administrative control. The Commissioner while exerci....