TaxTMI 
TaxTMI 
2022 (11) TMI 540
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....22. 2. Grounds of appeal raised by the assessee are reproduced as under: "1. The order passed u/s. 154 has been passed without allowing any opportunity of hearing and therefore void ab initio. 2. The impugned order purportedly passed u/s. 154 is beyond the scope of section 154 and therefore without jurisdiction and bad in law. 3. The order passed u/s. 154 is barred by limitation provided u/s. 263 of the Act. 4. The Appellant craves leave to add, alter, amend and/or withdraw any of the grounds or ground of appeal either before or at the time of appeal hearing." 3. Brief facts of the case are that Ld. Pr. CIT-1 had passed an order u/s. 263 of the Act on 31.03.2021 against the assessment order passed u....
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.... notice of the Bench as the matter was relegated by the Ld. Pr. CIT on the issues raised in only one of the show cause notices of 12.03.2021 while the matter was pending before the Co-ordinate Bench of ITAT, Kolkata in the said appeal. Instead of providing any clarification, Ld. Pr. CIT passed rectification order u/s. 154 read with section 263 of the Act dated 07.03.2022 by which paragraph 13 (reproduced above) of the original order u/s. 263 was modified. The modified paragraph under the impugned order u/s. 154 read with sec. 263 of the Act reads as under: "On careful examination, I find that there is mistake in para 13 of the order u/s. 263 dated 31.03.2021 which is apparent from record. Now the order u/s. 263 is rectified u/s. 15....
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....Ld. Pr. CIT, there were no specific directions for the AO which were subsequently incorporated by way of passing an order u/s. 154 of the Act during the pendency of the stated first appeal which is the impugned order before us challenged by the assessee. 3.3. On this aspect of passing of an order u/s. 154 of the Act during the pendency of the first appeal referred above, the coordinate bench had observed in its order that rectification order has to be judged in an independent appeal within the parameter and scope available under the Act. It thus resisted itself from making any observation on the points contained in the other two show cause notices. Relevant extracts of the observations and finding in this respect by the coordinate bench ....
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....ng ourselves to a limited point that two issues have been raised under the fi4rst show cause notice. On these two issues no action u/s. 263 of the Act is justifiable and, therefore, we quash the order of the Ld. Commissioner to this extent. Other issues are not the subject matter of appeal before us and, therefore, we do not, make any observations on these issues." 4. In the impugned order u/s. 154 read with section 263 of the Act, Ld. Pr. CIT gave revisionary directions on the issues raised by the first show cause notice of 12.03.2021, and further relegated the issues raised through the other two show cause notices of 19.03.2021 and 26.03.2021 to the AO. Being aggrieved by this rectification order passed by Ld. Pr. CIT, the assessee is ....
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....ent to note that by way of the first order of the coordinate bench, the revisionary order u/s. 263 dated 31.03.2021 has been quashed on the two issues raised by the Ld. Pr. CIT by way of first show cause notice on 12.03.2021. We find that in the present facts and circumstances, the legal maxim 'sublato fundamento cadit opus' is applicable, meaning thereby - 'a foundation being removed, the superstructure falls'. Once the basis of a proceeding is gone, the action taken thereon would fall to the ground. Thus, in the absence of such foundation, exercise of a suo motu power is impermissible. It should not be presumed that initiation of power under suo motu revision is merely an administrative act. It is an act of a quasijudicial authority and b....
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.... 263(2) of the Act cannot be extended by resorting to the provisions of section 154 of the Act. Such an approach, if permitted, will never lead to finality of the proceedings invoked u/s. 263 and, therefore, cannot be appreciated, making the provision prescribing the limitation otiose. It is like when a case is reopened say on four issues and addition/disallowance are made only on three of the issues and one is missed for the purpose of making any addition or disallowance. Subsequently, by resorting to section 154 addition/disallowance cannot be made on the one issue which was missed in the assessment proceeding completed, once the time limit to pass the assessment order has expired. 8.2. It is an issue of assumption of jurisdiction and ....