2021 (12) TMI 368

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.... being aggrieved by the order dated 29.01.2018 in I.T.A No.20/Coch/2017 has filed the instant appeal under Sec.260A of the Income Tax Act, 1961 (for short, 'the Act'). The subject matter of the appeal relates to the issues arising out of the return filed by the assessee for the assessment year 2010-11. 3. The circumstances surrounding the controversy in the appeal are summarily stated thus: 3.1 On 18.10.2010 the assessee filed the return of income for the assessment year 2010-11. On 21.01.2014 notice under Sec.148 was issued to the assessee on the ground that the assessee violated the provisions of Section 11(5) of the Act and in substance, the nature of activity undertaken by the assessee is in the nature of business. 4. T....

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.... 11 & 12 of the Income Tax Act, 1961. By virtue of section 13(8) of the Income Tax Act, the Assessing Officer had held that nothing contained in section 11 or section 12 shall operate so as to exclude any income from the total income of the assessee for the assessment year 2010-11. Accordingly, I am of the opinion that the income assessed for the assessment year 2010-11 is short by Rs. 2,08,91,000/-. 5. In the light of the above discussion, I find that the assessment order passed by the Assessing Officer u/s 143(3) of the Income Tax Act dated 10/03/2015 for the assessment year 2010-11 is erroneous in so far as it is prejudicial to the interests of revenue. Accordingly, invoking the provisions of section 263 of the Income Tax Act, 1....

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....u/s 263 of the I.T.Act was issued much subsequently, i.e., on 02.05.2016 and order u/s 263 of the I.T.Act was completed on 22.12.2016. Hence the revisional jurisdiction is beyond the period of limitation u/s 263 of the I.T.Act and is a nullity. 5.6 The learned Departmental Representative had submitted that the issue of limitation was not raised before the CIT, hence cannot be raised before the Tribunal. This contention of the learned DR cannot be entertained since the issue of limitation is a pure legal issue going into the root of the case and does not require examination of fresh fact. Therefore, going by the dictum laid down by the judgment of the Hon'ble Apex Court in the case of National Thermal Power Company Ltd. Vs. CIT ....

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....ance with law and hence void. It is ordered accordingly." 6. The above findings are under challenge in this appeal. The substantial questions of law framed by the Revenue reads thus: "1. Whether on the facts and circumstances of the case and particularly in the context of the Supreme Court decision in the case of ACIT VS.M/s Rajesh Jhaveri Stock Brokers Pvt.Limited holding that the intimation under section 143(1)(a) is not an order of assessment ,is the ITAT right in holding that the order passed by the Commissioner of Income Tax(Exemptions)under section 263 of the IT Act is barred by limitation? 2. Whether on the facts and circumstances of the case and in law, the ITAT is right in treating the order of the Commissioner....