TaxTMI 
TaxTMI 
2020 (3) TMI 786
X X X X Extracts X X X X
X X X X Extracts X X X X
.... order cannot be adjudicated by him in appeal after the same has merged with the order u/s. 264 passed by the CIT and that the only course of action available to the assesses is to agitate grounds arising from the assessment order which are taken in this appeal and were not subject matter of proceedings u/s. 264 before the High Court. 4. The learned CIT(A) failed to appreciate that it is section 264(4)(a) which prohibits the CIT from revising an order u/s. 264 if an appeal against the order lies to the CIT(A) and the assessee has not waived his right of appeal and there is no provision u/s. 246A imposing similar prohibition on CIT(A) to the effect that the CIT(A) shall not adjudicate appeal against an order where the order has been made subject matter of revision proceedings u/s. 264. The CIT(A) has seriously erred in applying provisions of section 264(4) conversely 5. The appellant ought not to have been taxed in respect of transfer of capital assets being land and depreciable assets of its undertaking known as OCM Division of the appellant company to OCM India Limited since, pursuant to the Scheme of Arrangement duly approved by the Hon'ble High Courts of Gu....
X X X X Extracts X X X X
X X X X Extracts X X X X
....sons as given under: i. The order of the AO has been merged with the order of the Ld. CIT under section 264 of the Act. Therefore, there cannot be any appeal before him (the learned CIT (A)) against the revision order passed by the Ld. CIT under section 264 of the Act in pursuance to the provisions of section 246A of the Act. ii. The assessee has waived its right for the appeal before him (the learned CIT (A)) as provided under the provisions of section 264 of the Act. In view of the above, the Ld. CIT (A) dismissed the appeal filed by the assessee without adjudicating the issue raised before him on merit. 7. Against the order of the Ld. CIT (A) dated 7th September 2010 the assessee is in appeal before us. 8. The Ld. AR before us submitted that the assessee has not waived his right for filing the appeal before the Ld. CIT(A) against the order of the assessment dated 31st December 2007. As such the assessee first preferred the appeal to the Ld. CIT(A) dated 29th January 2008 against the impugned assessment order which was pending before him till 31st December 2008. But in the meantime the assessee has made a revision application under section 264 of the Ac....
X X X X Extracts X X X X
X X X X Extracts X X X X
....ubject to the following conditions: (4) The Commissioner shall not revise any order under this section in the following cases- (a) where an appeal against the order lies to the ^56[Deputy Commissioner (Appeals)] 57[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 ^58[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 ^59[Deputy Commissioner (Appeals)]; or (c) where the order 60 has been made the subject of an appeal ^61[to the Commissioner (Appeals) or] to the Appellate Tribun 14. In the present facts and circumstances, the conditions specified under clause (c) as discussed above is applicable to the dispute on hand. The clause (c) of the provision restricts the power of the Commissioner of Income Tax to revise the order if any appeal has been preferred before the Ld. CIT(A). Undisputedly, in the present case the appeal has already been preferred to the Ld. CIT(A). However, the Ld. CIT has passed....
X X X X Extracts X X X X
X X X X Extracts X X X X
.... referred to in sub-section (12) of section 144BA; (d) an order made under section 163 treating the assessee as the agent of a non-resident; (e) an order made under sub-section (2) or sub-section (3) of section 170; (f) an order made under section 171; (g) an order made under clause (b) of sub-section (1) or under sub-section (2) or sub-section (3) or sub-section (5) of section 185 in respect of an assessment for the assessment year commencing on or before the 1st day of April, 1992; (h) an order cancelling the registration of a firm under sub-section (1) or under sub-section (2) of section 186 in respect of any assessment for the assessment year commencing on or before the 1st day of April, 1992 or any earlier assessment year; (ha) an order made under section 201; (hb) an order made under sub-section (6A) of section 206C; (i) an order made under section 237; (j) an order imposing a penalty under- (A) section 221; or (B) section 271, section 271A, section 271AAA, section 271AAB, section 271F, section 271FB, section 272AA or section 272BB; (C) section 272, section 272B or sect....
X X X X Extracts X X X X
X X X X Extracts X X X X
....y appeal under this Act which is pending immediately before the appointed day, before the Deputy Commissioner (Appeals) and any matter arising out of or connected with such appeals and which is so pending shall stand transferred on that date to the Commissioner (Appeals) and the Commissioner (Appeals) may proceed with such appeal or matter from the stage at which it was on that day : Provided that the appellant may demand that before proceeding further with the appeal or matter, the previous proceeding or any part thereof be reopened or that he be re-heard. Explanation.-For the purposes of this section, "appointed day" means the day appointed by the Central Government by notification in the Official Gazette. On perusal of the above provisions, it is revealed that there is no restriction imposed upon the Ld. CIT (A), like in the provisions of section 264 of the Act, for not deciding the issue against the assessment order in a situation where the assessee has made a revisionary application under section 264 of the Act. 16. We also find that the Hon'ble Allahabad High Court in the identical facts and circumstances has decided the issue in favor of the assessee ....
X X X X Extracts X X X X
X X X X Extracts X X X X
.... virtue of sub-section (4) of section 264. There is another aspect of the matter. Clause (a) of section 264(4) talks of a situation where assessee has not waived his right of appeal. When appeal is filed, the right of appeal stands availed and exhausted by assessee, hence question of waiver of right of appeal thereafter would not arise. Moreover, Clauses (b) and (c) also makes a distinction in respect of an appeal preferred before Commissioner (Appeals) or Appellate Tribunal vis-a-vis appeal preferred before Deputy Commissioner (Appeals). For an appeal preferred before Deputy Commissioner (Appeals), Clause (b) says that if an order on appeal is pending but when an appeal is preferred before Commissioner (Appeals) or Appellate Tribunal, Clause (c) contemplates that the order has been made subject of appeal, meaning thereby mere filing of appeal against assessment order is sufficient to attract clause (c) and thereafter power of revision shall stand lost and cannot be invoked. In view thereof, it is to be held that Commissioner committed a manifest error in exercising revisional power when petitioner's appeal was pending before Commissioner (Appeals). The revisi....