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Facts
The assessee filed an appeal against the order of the CIT(Appeals) for assessment year 2015-16. The dispute arose from two assessment orders passed by the AO, one dated 25.3.2022 and another dated 29.5.2023, concerning similar additions.
Held
The Tribunal quashed the impugned order dated 25.3.2022, holding it not tenable in law as the same issues were subsequently assessed in the order dated 29.5.2023. The assessee was given liberty to question the additions on merits in the pending proceedings.
Key Issues
Legality of two assessment orders passed for the same assessment year on similar issues, and whether the later order supersedes the former.
Sections Cited
69A, 11513BE, 234A, 234B, 234C, 144, 263, 147, 144B, 148
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Income Tax Appellate Tribunal, “A” BENCH : BANGALORE
Before: SHRI WASEEM AHMED & SHRI PRAKASH CHAND YADAV
Per Prakash Chand Yadav, Judicial Member
The present appeal of the assessee is arising out of the order of the ld. CIT(Appeals), National Faceless Appeal Centre, Delhi (NFAC) dated 18.11.2024 having DIN and relates to assessment year 2015-16.
2. The assessee has raised the following grounds:-
“1. The order of the learned Assessing Officer in so far as it is against the Appellant is opposed to law, equity, weight of evidence, probabilities, facts and circumstances of the case.
The learned authorities below are not justified in making addition of INR 18,07,78,478/- to the total income returned by the appellant under the facts and in the circumstances of the Appellant's case.
3. The learned authorities below are not justified in making addition of INR 11,97,14,040/- as unexplained money u/s 69A of the Act being the alleged excess credit in the share premium account under the facts and in the circumstances of the Appellant's case.
4. The learned Assessing Officer has erred in taxing the addition of INR 11,97,14,040/- u/s. 115I3BE of the Act under the facts and in the circumstances of the Appellant's case. 5. The learned authorities below are not justified in making addition of INR 6,10,64,438/- being the expenditure incurred towards Infrastructure & Examination Fee under the facts and in the circumstances of the Appellant's case. 6. The learned CIT(A) has erred in upholding the findings of the learned Assessing Officer without providing the mandatory opportunity of being heard to the appellant under the facts and in the circumstances of the Appellant's case. 7. Without prejudice to the above, the Appellant denies being charged to interest u/s. 234A, 234B and 234C of the Act, which under the facts and in the circumstances of the Appellant's case deserves to be cancelled. 8. For the above and other grounds that may be urged at the time of hearing of the appeal, your Appellant humbly prays that the appeal may be allowed, and Justice rendered.”
The solitary issue which arises for consideration in this case is whether the impugned order of assessment dated 25.3.2022 passed u/s. 144 r.w.s. 263 is legally tenable in law when the additions made in this assessment order have been subsequently assessed in the order dated 29.5.2023 passed u/s. 147 r.w.s. 144B of the Act.
At the outset, the ld. counsel for the assessee pointed out that in the facts and circumstances of the case the revenue has passed two assessment orders on similar issues under two different provisions of the Act. He has drawn of the attention of the Bench towards the paperbook filed before the lower authorities and contended that the impugned assessment order may kindly be quashed, and the second order passed by the revenue u/s. 147 r.w.s. 144 is pending before the CIT(Appeals).
The ld. DR relied on the orders of the lower authorities.
We have heard the rival submissions and perused the material available on record. In this case, the original assessment was framed by the department on 26.12.2017. Thereafter the CIT exercising his power u/s. 263 of the Act revised the order of the AO dated 26.12.2017 and held that the order passed by the AO is erroneous and prejudicial to the interests of the revenue. Thereafter, the AO has framed fresh assessment order which is impugned in the present proceedings vide order dated 25.3.2022. It is also observed that the department vide notice dated 30.7.2022 reopened the case of assessee for the impugned year u/s. 148 of the Act and in those proceedings the AO has framed the assessment on 29.5.2023 (copy filed in the paperbook). When we compare the additions made by the AO in the impugned assessment order with the order passed by the AO u/s. 147 of the Act, we observe that similar additions are made by AO in the subsequent order u/s. 147 dated 29.5.2023. The assessee has also undertaken before us that he will not challenge the action u/s. 147 on legal ground in those proceedings. Hence we quash the impugned order and hold that the impugned order passed by the AO is not tenable in law. We also clarify that the assessee will not challenge the action of the revenue u/s. 147 on the legal ground in the proceedings pending before the ld. CIT(Appeals) and has liberty to question the additions on merits in those proceedings. With these observations, the appeal of the assessee stands allowed.
In the result, the appeal of the assessee is allowed.
Pronounced in the open court on this 17th day of March, 2025.