TaxTMI 
TaxTMI 
TaxTMI 
2021 (5) TMI 830
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....143(3), r.w.s.147, dt.23.3.2015, as bad in law, automatically the aforesaid reassessment »order stood cancelled and therefore, the impugned order under section 154 of the Act, dt. 16.9.2017, could not survive. 3. The Id CIT(A) failed to appreciate that the aforesaid ground was specifically raised before the CIT(A), vide appellant's written submissions, dt.22.5.2018, wherein, vide paragraph (II) of the submissions, it was clearly pointed out that as, vide paragraph 5.4.4 of the appellate order, dt.29.12.2017, it was held by the CIT(A) that the reopening of the assessment was bad in law, obviously the aforesaid reassessment order stood quashed/cancelled and therefore, the CIT(A) ought to have cancelled the impugned order under section 154 of the Act, as the reassessment order which was rectified vide the impugned order under section 154 of the Act, stood quashed / cancelled. 4. The CIT(A) failed to appreciate that the appeal against the impugned rectification order under section 154 of the Act, was filed on 27.10.2017, whereas the aforesaid appellate order for the AY 2009-10 was passed on 29.12.2017 and in view of this reason the ground that the aforesaid reassessment o....
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..... In compliance thereto, it was submitted by the assessee that its original return filed on 29.09.2009 be treated as a return filed in response to the above mentioned notice. The aforesaid request of the assessee was accepted by the A.O and notices u/ss. 143(2)/142(1) were thereafter issued by him. 3. During the course of the reassessment proceedings, it was observed by the A.O that as per the information received from the investigation wing of the department the assessee company during the year under consideration was in receipt of share premium of Rs. 32,21,48,67,940/-. Although it was the claim of the assessee that the amount of share premium was shown in the securities premium account in the reserves and surplus of its balance sheet for the year in question, it was observed by the A.O that the said issue was neither discussed by the A.O in the assessment order nor in the order sheet notings. As the assessee failed to place on record any material to prove the nature and source of the share premium received during the year, the A.O, thus, considered the amount of Rs. 32,21,48,679/- as an unexplained cash credit u/s 68 of the Act. Vide his order passed under Sec. 143(3) r.w.s 14....
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.... u/s 68 of share premium of Rs. 32,21,48,679/- was incorrectly made by the A.O while framing the assessment under Sec. 143(3) r.w.s 147, dated 23.03.2015 to the 'book profit' u/s 115JB in place of the income under the normal provisions of the Act. On the basis of his aforesaid observations the A.O vide his order passed under Sec. 154, dated 16.09.2017 determined the income of the assessee under the normal provisions of the Act at Rs. 49,27,31,060/- and 'book profit' under Sec. 115JB at Rs. 90,99,78,259/-, as under: Amount (Rs.) Income under normal provisions determined u/s 143(3) r.w.s 144C(1), dated 28.01.2014 before allowing set-off of unabsorbed depreciation as the assessee had no unabsorbed depreciation left for set-off for A.Y 2008-09. 17,05,82,381/- Add : Disallowance u/s 68 32,21,48,679/- Total income as pr normal provisions 49,27,31,060/- Tax @33.99% 16,74,79,287/- Book Profit u/s 115JB 90,99,78,259/- Tax @10% 9,09,97,826/- 6. Aggrieved, the assessee assailed the order passed by the A.O under Sec. 154, dated 16.09.2017 before the CIT(A). It was submitted by the assessee that the mistakes, if any, in the assessment order passed und....
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....s of his aforesaid observations the appeal of the assessee was partly allowed. 7. The assesse being aggrieved with the order of the CIT(A) has carried the matter in appeal before us. The Ld. Authorised representative (for short "A.R") for the assessee assailed the assumption of jurisdiction by the A.O under Sec. 154 on two fold grounds, viz. (i). that as the mistakes, if any, in the order passed by the A.O were not apparent from record, the same, thus, could not have been brought within the realm of rectification u/s 154 of the Act; and (ii). that as the reassessment order passed by the A.O under Sec. 143(3) r.w.s 147, dated 23.03.2015 had been quashed by the CIT(A) vide his order dated 29.12.2017, therefore, rectification of such non-existent order was beyond comprehension. 8. Per Contra, the ld. Departmental Representative (for short "D.R") relied on the orders of the lower authorities. 9. We have heard the authorised representatives for both the parties, perused the orders of the lower authorities and the material available on record, as well as considered the judicial pronouncements that have been pressed into service by them to drive home their respective contentions. Admit....
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....the normal provisions the amount share premium that was held by him as an unexplained cash credit u/s 68 while framing the reassessment, and at the same time reduced the said addition that was erroneously made by him to the 'book profit' u/s 115JB of the Act. 11. We have given a thoughtful consideration to the issue in question and concur with the view taken by the CIT(A) that as the omission on the part of the A.O to add the unexplained cash credit u/s 68 of Rs. 32,21,48,679/- to the assessee's income under the normal provisions of the Act and instead wrongly adding the same to the 'book profit' of the assessee u/s 115JB of the Act was a mistake which was glaring, apparent, patent and obvious from record, the A.O, thus had rightly rectified the same by invoking the powers vested with him u/s 154 of the Act. We are unable to comprehend as to on what basis it is claimed by the ld. A.R that the issue in question being a debatable one would fall beyond the realm of the jurisdiction vested with the A.O u/s 154 of the Act. Be that as it may, in our considered view as the A.O remaining well within the scope of his jurisdiction had rectified the aforesaid mistake, thus, principally he ca....
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....nviction that the claim of the ld. A.R that the A.O had exceeded his jurisdiction and rectified the aforesaid issues which were not free from debate and involved a long drawn process of reasoning is devoid and bereft of any substance and does not merit acceptance. The Ground of appeal No. 6 is dismissed. 12. We shall now deal with the claim of the ld. A.R that as the reassessment order passed by the A.O u/s 143(3) r.w.s 147, dated 23.03.2015 was thereafter quashed by the CIT(A) by treating the same as void ab initio, therefore, no rectification of the said non-existent order could have been carried out. We would not hesitate to observe that the aforesaid claim of the ld. A.R at the first blush appeared to be very convincing, but then, we are afraid the same having two facets cannot be accepted in toto. Admittedly, the reassessment order passed by the A.O u/s 143(3) r.w.s 147, dated 23.03.2015 was quashed by the CIT(A), vide his order dated 29.12.2017. We may herein observe that the reassessment order was quashed by the CIT(A) for invalid assumption of jurisdiction by the A.O u/s 147 of the Act and the addition u/s 68 of unexplained cash credit of Rs. 32,21,48,679/- was not comment....
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....11,49,85,610/- by the A.O found its roots in the original assessment order passed by the A.O u/s 143(3) r.w.s 144C(1), dated 28.01.2014 and the same was not effaced pursuant to the quashing of the reassessment order passed by the A.O u/s 143(3) r.w.s 147, dated 23.03.2015. We, thus, are of the considered view that as the issue pertaining to allowing of set-off of unabsorbed depreciation of Rs. 11,49,85,610/- by him vide the assessment order passed u/s 143(3) r.w.s 144C(1), dated 28.01.2014 had not merged in the reassessment order, the A.O, thus, was well within his jurisdiction in rectifying the mistake as regards allowing of set-off of unabsorbed depreciation of Rs. 11,49,85,610/- vide his order passed under Sec. 143(3) r.w.s 144C(1), dated 28.01.2014 as the assessee had no unabsorbed depreciation left for set-off for A.Y 2008-09. Accordingly, we uphold the order passed by the A.O to the extent he had rectified his mistake as regards allowing of set-off of unabsorbed depreciation of Rs. 11,49,85,610/- vide his original assessment order passed u/s 143(3) r.w.s 144C(1), dated 28.01.2014. However, we may herein observe that the directions given by the CIT(A) to the A.O, viz. (i). to....
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....ssed by the A.O u/s 154, dated 16.09.2017 subsequent to such quashing of the reassessment order by the CIT(A), to the extent germane to the addition of share premium of Rs. 32,21,48,679/- as an unexplained cash credit under Sec.68 to the assessee's income under the normal provisions of the Act could not have survived on a standalone basis. To sum up, now when the reassessment order on the basis of which the share premium of Rs. 32,21,48,679/- was treated by the A.O for the very first time as an unexplained cash credit within the meaning of Sec. 68 of the Act was quashed by the CIT(A) vide his order dated 29.12.2017, thus, the order of rectification passed u/s 154, dated 16.09.2017 to the extent relatable to the aforesaid issue in question, as a corollary thereto, could not have subsequent to quashing of such reassessment order survived and have an existence on a standalone basis. At this juncture, we may herein observe that if the rectification in question i.e addition of the share premium that was treated as an unexplained cash credit by the A.O u/s 68 vide his reassessment order passed under Sec. 143(3) r.w.s 147, dated 23.03.2015 to the income of the assessee determined under th....