2024 (8) TMI 1163

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....1 (hereinafter the 'Act') vide order dated 24.03.2016. 2. The only issue in this appeal of assessee is as regards to the order of CIT(A) dismissing the appeal as not-maintainable as the assessee has already availed alternative remedy u/s.264 of the Act against the assessment order. 3. Brief facts are that the assessee filed his return of income for the relevant assessment year 2013-14 on 04.08.2013 online. The return of income was processed u/s.143(1) of the Act and subsequently, taken up for scrutiny assessment by issuing notice u/s.143(2) of the Act. The AO framed assessment u/s.143(3) of the Act vide order dated 24.03.2016. The AO made addition of unexplained investment u/s.69 of the Act and also addition of bank interest. The asse....

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....rom the assessment order on merits. 4.1 After considering the submissions of the assessee, the CIT(A) dismissed the appeal of assessee as not-maintainable, as the assessee has already taken recourse u/s.264 of the Act and once the assessee has opted alternative remedy, relying on the decision of Hon'ble Orissa High Court in the case of Orissa Rural Housing Development Corporation Ltd., vs. ACIT reported in (2012) 343 ITR 316, dismissed the appeal as not-maintainable by observing in para 3.0 as under:- 3.0 I have considered the submissions of the assessee. The assessee preferred to take recourse u/s 264 of the Act and filed an application to the PCIT, Pondicherry who admittedly dismissed the petition vide order C.No.9127/2/PCIT/P....

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....l jurisdiction u/s.264 of the Act, it cannot constitute a bar for invoking the appellate jurisdiction and hence, the appeal before CIT(A), in case revision petition is dismissed u/s.264 of the Act, is maintainable. In view of the above, the ld. counsel stated that the order of CIT(A) be set aside and CIT(A) be directed to consider the condonation petition as well as decide the issue on merits. 6. On the other hand, the ld. Senior DR argued that once the assessee is availing alternative remedy, the issue is fully covered by the decision of Hon'ble Orissa High Court in the case of Orissa Rural Housing Development Corporation Ltd., supra and even the provisions of the Act bars from filing of these appeals. The ld. Senior DR relied on CBDT c....

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....Board by notification in the Official Gazette. Sections 131, 133 and 134 - Commissioners (Appeals) to have the same powers as Appellate Assistant Commissioners in regard to discovery, production of evidence, etc.; to call for information; and to inspect registers of companies. Section 154 - Rectification of mistakes by Commissioners (Appeals). Sections 177(2), 189(2), 271, 271A and 272A - Commissioners (Appeals) to have the same powers as Appellate Assistant Commissioners in regard to imposition of penalty. Section 245 - Commissioners (Appeals) authorised to set off refund against tax remaining payable. Section 245A - Inclusion of Commissioner (Appeals) as an income-tax authority for purposes of ....

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.... Section 295 - Board empowered to frame rules specifying the circumstances in which, the conditions subject to which and the manner in which the Commissioner (Appeals) may permit an appellant to produce evidence which he did not produce or he was not allowed to produce before the Income-tax Officer. In view of the above, the ld. Senior DR argued that the provisions of section 264 of the Act itself bars filing of appeal and the conditions mentioned in the provisions of section 264(4)(a) of the Act. He argued that once the provision itself does not permit for filing of alternative remedy, the assessee cannot file appeal before CIT(A) after availing the remedy u/s.264 of the Act. 7. I have heard rival contentions and gone through facts ....

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....ppellate authorities do not bar an appellant from invoking the jurisdiction, if he had invoked revisional jurisdiction, even though for invoking revisional jurisdiction, it is a pre-condition that the appellate jurisdiction should not have been invoked. 2. The argument advanced before us is that by inferential reasoning we should hold that if there is a limitation on exercise of revisional power a similar limitation should be read into the exercise of the appellate power. It does not require any authority to hold that it is not the province of the court to rewrite the law on the ground that the provision should have been worded in a different manner in order to make it seemingly consistent with some other provision. Moreover, it is....