TaxTMI 
TaxTMI 
2018 (11) TMI 636
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....passed by the Principal Commissioner of Income Tax - 2, Nashik be quashed as the same is barred by limitation and hence bad in law because the issue raised U/s. 263 of the Act is subject matter of assessment order U/s. 143(3) of the Act which was passed on 01/06/2012. 2. On the basis of facts and the circumstances of the case and as per law, The Principal Commissioner of Income Tax - 2, Nashik is not justified in invoking the provisions of section 263 of the Act in respect of order passed by the A.O. u/s. 147 of the Act particularly when is said order passed by the A.O. is void because the A.O. has not disposed off the objections raised by the appellant for issue of notice U/s. 148 of the Act by way of a speaking order. 3. On the basis of facts and the circumstances of the case and as per law, The Principal Commissioner of Income Tax - 2, Nashik is not justified in invoking the provisions of section 263 of the Act. 4. On the basis of facts and in the circumstances of the case and as per law, The Principal Commissioner of Income Tax - 2, Nashik is not justified in setting aside the assessment which was passed U/s. 147 of the Act by holding that the A.O. ha....
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....ee has also claimed the deduction under chapter VI-A in respect of the business of the assessee eligible for deduction the claim of the assessee in respect of gain on sale of said plant and machinery is disallowed thereby resulting such profit cannot be considered u/s 80IA(4) of the Act and deduction u/s 80IA(4) reduced to Rs. 1,38,25,597/- instead of Rs. 1,42,40,062/-. (wrongly numbered) 6.1 Further the partnership firm fulfills all these criteria's provided u/s. 80IA(4)(i)(a)&(b) of the Act, and therefore the said project is eligible for getting the benefits of the provisions of the said section." 6. Thereafter, the Assessing Officer recorded reasons for reopening the assessment under section 148(2) of the Act, copy of which is placed at page 8 of Paper Book. The assessee filed objections to the notice issued under section 148 of the Act and pointed out that the issue raised in re-assessment has already been considered by the Assessing Officer while passing the order under section 143(3) of the Act and there was no new material coming into light for initiating proceedings under section 147/148 of the Act, copy of the said letter is placed at page 10 of Paper ....
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....exercise of jurisdiction by the Commissioner under section 263 of the Act and hence, the present appeal. 9. Before proceeding further, it may be pointed out that in assessment year 2010-11, original assessment was completed under section 143(3) of the Act, whereas in assessment year 2011-12, return of income filed by the assessee was processed under section 143(1) of the Act. However, in response to the reasons recorded for reopening the assessment under section 148(2) of the Act, the facts and issues were explained and proceedings initiated under section 148 of the Act were dropped by the Assessing Officer by passing order under section 143(3) r.w.s. 148 of the Act. 10. The learned Authorized Representative for the assessee pointed out that the case of assessee for assessment year 2010-11 was selected under CASS for verifying the deduction claimed under section 80IA(4) of the Act. He further pointed out that even for assessment year 2009-10, the case of assessee was selected for scrutiny for verifying the deduction claimed under section 80IA(4) of the Act and assessment order was passed under section 143(3) of the Act, which has not been disturbed. He then referred to reason....
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....ll conditions and the deduction was allowed to the assessee in assessment year 2009-10. He further pointed out that even the toll income was shown in assessee's hands in subsequent years, which has been accepted as such. However, the Commissioner wants revision of issue which has been duly considered in earlier years and this year vide order passed under section 143(3) of the Act and also in 148 proceedings, such re-consideration of the issue under section 263 of the Act, as per learned Authorized Representative for the assessee was not permissible. 11. The learned Departmental Representative for the Revenue on the other hand, placed reliance on the order of Commissioner with special reference to paras 4 and 5. 12. We have heard the rival contentions and perused the record. Under the provisions of section 263 of the Act, the Commissioner is empowered to exercise his jurisdiction where the order passed by Assessing Officer is erroneous and prejudicial to the interest of Revenue. In case both the conditions of section 263 of the Act are satisfied i.e. order is erroneous and prejudicial to the interest of Revenue, then the Commissioner is empowered to exercise his jurisdiction u....
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....sed on 01.06.2012 and had become final. The Commissioner has initiated proceedings under section 263 of the Act by issue of show cause notice, which is dated 08.01.2016. In case the Commissioner had to exercise its jurisdiction of revision of assessment order passed on 01.06.2012, then show cause notice under section 263 of the Act could be issued only upto March, 2015, which is not so. Hence, the assessment order becomes final. 14. Now, coming to second stage of proceedings in the case of assessee, where after passing of said assessment order, the Assessing Officer had recorded reasons for reopening the assessment proceedings, wherein the sole reason for reopening the assessment was as under:- "On verification of e-return of income for A.Y. 2010-11 filed by the assessee firm, it is seen that it has claimed deduction of Rs. 1,42,40,062/- under section 80-IA of the Act. The deduction u/s 80-IA of the Act is allowable in the case of company only and not to any other person like individual, HUF, firm, etc. needs to be verified." 15. The basis for reasons recorded for reopening the assessment under section 148(2) of the Act was deduction claimed under section 80IA(4) of ....
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....Infrastructure had not shown any interest credited to the Profit and Loss Account for the year and the Assessing Officer had not conducted any enquiries in this regard. At the outset, it may be pointed out that where the Commissioner has exercised his jurisdiction against reopened assessment under section 147 / 148 of the Act, then he has to consider only the said order passed under section 143(3) r.w.s. 147 of the Act. As pointed out by us in the paras hereinabove, re-assessment proceedings were initiated for the sole purpose of verifying the claim of deduction under section 80IA(4) of the Act. Undoubtedly, the said proceedings were dropped by passing speaking order. In other words, allowability of deduction which was by earlier order passed under section 143(3) of the Act, dated 01.06.2012 was not disturbed. Once the said assessment order has become final, then second order passed by Assessing Officer under section 143(3) r.w.s. 147 of the Act merely dropping re-assessment proceedings cannot be held to have decided the issue of eligibility of claim of deduction under section 80IA(4) of the Act. The said issue stands settled in favour of assessee by earlier order dated 01.06.2012,....