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Income Tax Appellate Tribunal, “H” BENCH, MUMBAI
PER MAHAVIR SINGH, JM:
This appeal by the assessee is arising out of the revision order under section 263 of the Act passed by Pr. Commissioner of Income Tax- 12, Mumbai [in short PCIT], in order No. Pr.CIT-12/263/2016-17 dated 30.03.2017. The Assessment was framed by the Dy. Commissioner of Income Tax (OSD), Circle-9(1), Mumbai (in short ‘DCIT’) for the A.Y. 2009- 10 vide order dated 30.12.2011 under section 143(3) of the Income Tax
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Act, 1961 (hereinafter ‘the Act’). The reassessment order was passed under section 143(3) read with section 147 of the Act vide order dated 20.02.2015.
At the outset, it is noticed that this appeal is time barred by 92 days and registry has pointed out the defects. When this was pointed out to learned Counsel for the assessee he stated that assessee has already filed condonation petition. He narrated the fact that the PCIT-12 Mumbai passed revision order under section 263 of the Act for the relevant assessment year 2009-10 on 30-03-2017, which was served on the assessee on 30-03-2017 itself. The due date for filing of appeal before the Tribunal was 28th May 2017, but ultimately appeal was filed before Tribunal against the order of PCIT only on 28-09-2017. According to the learned Counsel of the assessee, the filing of appeal go delayed by 92 days for the reason that the order of PCIT i.e. revision order passed under section 263 of the Act was in gross violation of principles of natural justice and without providing adequate opportunity of being heard to the assessee. Hence, alternative remedy was being perused by the assessee by filing writ petition against the impugned revision order before Hon’ble Bombay High Court on 05-05-2017, which was later on withdrawn and appeal before Tribunal was filed on 29.08.2017. According to the learned Counsel when the assessee is availing alternative remedy particularly before Hon’ble Bombay High Court, the cause of delay in filing of appeal before Tribunal is reasonable. When these facts were confronted to the learned CIT DR, he only opposed the condonation of delay and stated that the delay should not be condoned.
After going through the reasons stated by the assessee before us, that it was perusing alternative remedy in the shape of writ petition before the Hon’ble Bombay High Court and due to that the filing of appeal before
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the Tribunal can delayed by 92 days, we find that the cause is reasonable and hence, the delay is condoned and appeal is admitted.
Further, the learned Counsel for the assessee argued that it has raised additional grounds of appeal, which is purely legal and in view of the decision of Hon’ble Supreme Court in the case of National Thermal Power Co. Ltd. v. CIT [1998] 229 ITR 383 (SC), the same should be admitted. The learned Counsel for the assessee drew our attention to the additional grounds raised which reads as under: -
“Additional grounds
That on the facts and circumstances of the case, the order passed by the Ld. CIT under section 263 is bad in law and is liable to be quashed.
That on the facts and circumstances of the case, the order passed by the Ld. CIT under section 263 is time barred as per the ratio laid down by the Hon’ble Apex Court in Alagendra Finance Limited (2007) 293 ITR 1 and is hence liable to be quashed.”
On the other hand, the learned CIT DR, has not seriously objected to the admission of additional grounds.
After hearing both the sides, as regards as the additional grounds, we feel that this is a purely legal issue and needs adjudication; hence, we admit the additional grounds and will adjudicate this issue.
Briefly stated facts of this case are that the assessee company is engaged in the business of civil construction, builder, developer, contractor and sub-contractor by profession. Original assessment was completed by the DCIT (OSD)-91, Mumbai for the relevant AY 2009-10
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vide order dated 30-12-2011 under section 143(3) of the Act. During original scrutiny assessment proceedings the return of income was accepted by the AO. Subsequently, a notice under section 148 of the Act dated 9-05-2013 was issued for escapement of income for the reason that the AO received information for DGIT(Investigation) that assessee is indulging in bogus purchases and for the issuance of this notice the AO recorded the following reasons :-
“the return of income was filed by the assessee for AY 2009-10 on 11.02.2009, declaring total income at ₹ 1,35,84,202/-. Subsequently, the assessment was completed under section 143(3) on 30.12.2011, assessing is total income at ₹ 1,35,84,202/-.
The information has been received from DGIT (Inv.) that the Sales Tax Department has informed that the assessee indulged in accounting the bogus purchase bills without actual delivery of goods. In this case under consideration as per the information provided by the Sales Tax Department the assessee has availed the bills of bogus / fictitious purchases to the tune of ₹ 1,17,930/- to suppress its profits from following parties during the year:
Sl. No. Name of TIN No. PAN FY Amount the party 1. Raj 27450262425V AIJPD9848G 2008-09 86,126 Traders 2 Shree 27560605599V ABFPY2160B 2008-09 31,804 Nakodaji Impex The name of the above parties are appearing in the list of Hawala Operators made available on the official web site of the sale Tax Department, Maharashtra. The said parties have only issued bills
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without actual delivery of goods and actual transactions. Therefore, it is proved beyond doubt that, the assessee had entered into bogus purchases transactions to reduce the taxable profit.
In view of the above facts, I have reason to believe that the income of ₹ 1,17,930/- chargeable to tax escaped assessment for AY 2009-10, within the meaning of provisions of section 147 of the Act. Therefore, I am satisfied that it is a fit case to reopen the assessment under section.147 of the I.T. Act.”
The AO completed the re-assessment under section 143(3) read with section 147 of the Act vide order dated 20-02-2015 making addition of bogus purchases amounting to Rs. 1,35,84,202/-. The PCIT-12, Mumbai issued show cause dated 14.03.2017 as to why the reassessment order passed by AO under section 143(3) r.w.s 147 of the Act dated 20-02-2015 be not revised under section 263 of the Act for the reason that the AO has received information from the investigation wing of the Income Tax Department during the course of reassessment proceedings in respect of bogus purchases and receipt of share premium of Rs. 5.26 crores has not been examined by the AO and no addition has been made by the AO in the order passed under section 143(3) read with section 147 of the Act. The PCIT-12, subsequently directed the AO to reframe the assessment by revising the assessment order passed under section 143(3) read with section 147 of the Act dated 20-02-2015 by holding the same as erroneous in so far as it is prejudicial to the interest of the Revenue by holding in Para 4 and 5 as under: -
“4. A report had been called for from the Range Head in this regard. The Range Head submitted the report on 27.03.2017. The Range Head has
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submitted that in his considered view the assessment order dated 20.02.2015 passed u/s.143(3) r.w.s.147 of the Act passed by the DCIT- 12(3)(I). Mumbai is erroneous because the Assessing Officer did not take into consideration the information received from the DCIT(lnv), Mumbai vide letter dated 07.03.2014. Since the share premium received from the companies that were controlled by Shri Pravin Kumar Jam, entry provider who was covered by section 132 of the Income Tax Act is bogus share premium as it was merely in the nature of accommodation entries, the Assessing Officer should have made addition in respect to the share premium.
In view of the discussion above, it is evident that information that was received from Investigation Wing vide letter dated 07.03.2014 was not used by the Assessing officer in the re-assessment proceeding which he completed on 20.02.2015. therefore, I consider that order passed by the Assessing Officer u/s.143(31 r.w.s. 147 on 20.02.2015 is erroneous in so far it is prejudicial to the interest of revenue. Therefore. I set aside the assessment order dated 20.02.2015 passed by the DCIT12(3)(1), Mumbai in the case of the assessee with the limited purpose that Assessing Officer should make proper enquiries in respect to share premium of Rs. 5.26 crores received during the relevant previous year in the light of information received from the DGIT(lnv.) vide letter dated 07.03.2014 and to make the proper assessment after
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ascertaining the genuineness or the share capital and share premium received.”
Aggrieved against the same, the assessee came in appeal before Tribunal and raised the first jurisdictional issue which we have narrated above.
Before us, the learned Counsel for the assessee argued that the PCIT in the revision order under section 263 of the Act has passed revision order setting aside the order of the AO passed under section 143(3) read with section 147 of the Act i.e. the reassessment order dated 20-02-2015 for fresh inquiry of share capital and share premium received by the assessee company, which was never the subject matter of reassessment proceedings under section 143(3) read with section 147 of the Act, vide order dated 20.02.2015 and according to him the said issue was the subject matter of original assessment order only. What requires revision is not the reassessment order dated 20/02/2015 but the original assessment order dated 30-12-2011, if at all. For this he referred to the query raised during original assessment proceedings by the AO i.e. DCIT(OSD) 9(1), Mumbai vide notice under section 142(1) raising the questionnaire dated 10-10-2011 and vide questionnaire No.6 he raised a specific query which reads as under:-
“6) Furnish the details of share premium received of ₹ 52650000/- in the following format along with the necessary documentary evidence and prove the genuineness of transactions and creditworthiness of shareholders:
Sr. No Name and Pan Amount of share premium address of Opening Received closing share during holder the year
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The learned Counsel for the assessee then drew our attention to page 13 of the assessee’s paper book, wherein vide answer no. 4,5,6 the complete details of share holding including share premium were filed and are enclosed as annexure 2 of the relevant letter dated 21.10.2011 and the details reads as under:-
“4. Shareholding pattern is enclosed herewith in Annexure-2.
Details of shares issued and allotted during the year is enclosed herewith is annexure-2.
Details of premium received is also enclosed herewith in Annexure-2.”
The relevant annexure 2 is enclosed in assessee’s paper book at pages 19 to 500 which includes information of shareholders consisting of board resolution copies, share application ledger copies, account confirmation, bank statement copies, share certificates and balance sheet and profit and loss account. Also the copies of ITR acknowledgement and memorandum of association of the shareholders. The learned Counsel for the assessee further explained that these details were examined by the AO during the course of original assessment proceedings and completed the assessment under section 143(3) vide order dated 30-12-2011 which is enclosed in assessee’s paper book at pages 856 to 860. In view of these facts the learned Counsel for the assessee stated that first of all the complete details were filed before the AO during the course of original assessment proceedings, and on query from the AO by issuing notice under section 142(1) of the Act, and the details were filed in entirety. If at all, on this issue, if any assessment order which requires revision under section 263 of the Act that would be original assessment order 30-12- 2011. According to the learned Counsel the time limit for revision under
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section 263 of the Act starts from the date of original assessment order i.e. 30.12.2011 and the revision order passed by CIT under section 263 is dated 30.03.2017, which is beyond the time limit prescribed under section 263 of the Act i.e. 2 years from the end of the financial year in which the order sought to be revised was passed. The learned Counsel for the assessee relied on the decision of Hon’ble Supreme Court in the case of CIT vs. Alagendran Finance Limited (2007) 293 ITR 1 (SC).
On the other hand, the learned CIT DR, Shri B Shrinivasan argued that revision order passed by CIT under section 263 of the Act dated 30- 03-2017 has revised reassessment order framed by the AO under section 143(3) read with section 147 of the Act dated 20-02-2015 and according to him, the reassessment order passed by AO is erroneous and so far it is prejudicial to the interest of the Revenue for the reason that the AO while framing reassessment order did not take into consideration the information receive from DGIT investigation Mumbai vide letter dated 07.03.2014. According to him, since the share premium received from the companies that were controlled by Shri Pravin Kumar Jain, an entry provider, who was covered under section 132 of the Act under search proceedings, was issuing cheque to various parties in lieu of bogus shares premium and hence, the bogus share premium is merely in the nature of accommodation entries and AO should have made addition in respect of share premium or at least the same should have been verified. The learned CIT DR referred to the information received from DGIT investigation vide letter 07.03.2014 where assessee was one of the beneficiaries of receipt of share premium money from the bogus concerns operated by Pravin Kumar Jain. The learned CIT DR particularly drew our attention to pages 1 to 59 of Revenue’s paper book. According to him, the AO while framing re-assessment proceedings has not considered this information and hence, the reassessment order is erroneous in so far as it
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is prejudicial to the interest of the Revenue i.e. the reassessment order framed under section 143(3) read with section 147 of the Act dated 20.02.2015. According to the learned CIT Dr, the original assessment can be subject matter of revision and hence, the reassessment order revised by the PCIT is within the prescribed time.
We have heard the rival contentions and gone through the facts and circumstances of the cases. Admitted facts are that original assessment was completed by the DCIT (OSD)-91, Mumbai for the relevant AY 2009-10 vide order dated 30-12-2011 under section 143(3) of the Act. Subsequently, a notice under section 148 of the Act dated 9-05- 2013 was issued for escapement of income for the reason that the AO received information for DGIT(Investigation) that assessee is indulging in bogus purchases. The AO completed the re-assessment under section 143(3) read with section 147 of the Act vide order dated 20-02-2015 making addition of bogus purchases amounting to Rs. 1,35,84,202/-. It is a fact that the issue of share application money and share premium received from the group companies of Pravin Kumar Jain was never the issue before the AO at the time of recording of reasons for reopening of assessment, as is evident from the reasons recorded which are reproduced above, and from the reassessment order framed by the AO under section 143(3) r.w.s 147 of the Act. We find that during original assessment proceedings the issue of share application and share premium was very much the subject matter of enquiry by the AO and Ld. AO specifically enquired by issuing notice under section 142(1) of the Act. For this a query raised during original assessment proceedings by the AO i.e. DCIT(OSD) 9(1), Mumbai vide notice under section 142(1) raising the questionnaire dated 10-10-2011 and vide questionnaire No.6 he raised a specific query and which was answered by the assessee vide answer No. 4,5 & 6 vide letter dated 21.10.2011. It means that the issue of share
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application money and share premium received by assessee was the subject matter during the original assessment proceedings and which was considered by the AO. In such circumstances, we have gone through the case law of Hon’ble Supreme Court in the case of Algendra Finance Ltd. (supra), wherein the status of the reassessment qua the original assessment became the subject matter of adjudication, whether the reassessment replaces the original assessment in its entirety or it is only a supplementary assessment with the original assessment remaining intact came to be incidentally considered as a matter relevant for resolving the issue. Hon’ble Supreme Court has considered the decisions in the case of V jaganmohan Rao vs. CIT and CEPT (1970) 75 ITR 373 (SC) and also the decision in CIT vs. Sun Engineering Works P. Ltd (1992) 198 ITR 297 (SC), wherein it was decided that the AO’s jurisdiction was confined to income that has escaped assessment and that cannot justify revision, reopening or reconsideration of the entire assessment.
Further, the Hon’ble Supreme Court has considered the decision of Hon’ble Madras High Court in the case of AK Thanga Pillai (2001) 252 ITR 260 and considered the controversy. The view of the Hon’ble Madras High Court was in consensus with the decision of the Hon’ble Supreme Court in the case of Sun Engineering P. Ltd (supra) treating the reassessment as a supplementary assessment. According to the Hon’ble Supreme Court the time limit for revision has to be reckoned with reference to the first assessment in respect of any decision prejudicial to the revenue so that extended time limit was not available for revision under section 263 of the Act.
In our view, the law as to the powers of revision is now to be treated as settled by the decision of as Hon’ble Supreme Court in the case of Alagendran Finance Ltd. (supra). Hon’ble Supreme Court has also
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clarified that the law as regards to rectification power is different because Hon’ble Supreme Court after considering the case law of Hind Wire Industries ltd. vs. CIT (1995) 212 ITR 639 (SC) has decided the issue. According to us, the law as regards to rectification is different because the same is governed by the decision of Hon’ble Supreme Court in the case of Hind Wire Industries Ltd. (supra). The jurisdiction of rectification under section 154 /254 of the Act is entirely different from the jurisdiction of reassessment proceedings u/s 147 because the two provisions operate in different fields.
Even, Hon’ble Bombay High Court in the case of CIT vs. ICICI Bank Ltd. (2012) 343 ITR 74 (Bom.) considering the decision of Hon’ble Supreme Court in the case of Alagendran Finance Ltd. and also the decision of Bombay High Court in the case of Ashoka Buildcon Ltd vs. ACIT (2010) 325 ITR 574 (Bom.) has considered this exactly identical issue and held that the limitation period of two years under section 263 for revision of assessment starts from the end of the financial year in which the order sought to be revised was passed and in that case the Hon’ble High Court held that where jurisdiction under section 263(1) of the Act is sought to be exercised with reference to an issue which is covered by the original assessment order under section 143(3) of the Act and which does not form the subject-matter of reassessment under section 143(3) read with section 147 of the Act, the limitation must necessarily begin to run from the original assessment order under section 143(3) of the Act. Hon’ble Bombay High Court held as under:-
“7. This aspect of the matter has been considered in a judgment of a Division Bench of this Court in Ashoka Buildcon Ltd. v. Asstt. CIT [2010] 325 ITR 574 / 191 Taxman 29 . The Division Bench considered a similar submission based on
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Explanation 3 which was inserted in Section 147 by the Finance Act of 2009 with retrospective effect from 1/4/1989. Negativing the submission, the Division Bench held as follows:
...Where a reassessment has been made pursuant to a notice under Section 148, the order of reassessment prevails in respect of those items which form part of reassessment. On items which do not form part of the reassessment, the original assessment continues to hold the field. When the Assessing Officer reopens an assessment on a particular issue, it is open to him to make a reassessment on that issue as well as in respect of other issues which subsequently come to his notice during the course of the proceedings under Section 147. The submission of the revenue is that by not passing an order of reassessment in respect of other independent issues, the order of the Assessing Officer can be construed to be erroneous and to be prejudicial to the interests of the Revenue within the meaning of Section 263. The submission cannot be accepted in the facts of the present case. The substantive part of Section 147 as well as Explanation 3 enables the Assessing Officer to assess or reassess income chargeable to tax which he has reason to believe had escaped assessment and other income which has escaped assessment and which comes to
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his notice subsequently in the course of the proceedings under the section. There is nothing on the record of the present case to indicate that there was any other income which had come to the notice of the Assessing Officer as having escaped assessment in the course of the proceedings under Section 147 and when he passed the order of reassessment. The Commissioner, when he exercised his jurisdiction under Section 263, in the facts of the present case, was under a bar of limitation since limitation would begin to run from the date on which the original order of assessment was passed. We must however clarify that the bar of limitation in this case arises because the revisional jurisdiction under Section 263 is sought to be exercised in respect of issues which did not form the subject matter of the reassessment proceedings under Section 143(3) read with 147. In respect of those issues, limitation would commence with reference to the original order of assessment. If the exercise of the revisional jurisdiction under Section 263 was to be in respect of issues which formed the subject matter of the reassessment, after the original assessment was reopened, the commencement of limitation would be with reference to the order of reassessment. The present case does not fall in that category.
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Sub-section (2) of Section 263 stipulates a period of limitation of two years within which an order under sub-section (1) has to be passed. Under sub-section (2) no order under Section 263(1) can be made after the expiry of two years from the end of the financial year in which the order sought to be revised was passed. The order of assessment under Section 143(3) in the present case allowed the deduction which was claimed under Section 36(1)(vii), Section 36(1)(viia) and in respect of foreign exchange rate difference. Neither in the first order of reassessment dated 22 February 2000 nor in the second order of reassessment dated 26 March 2002 were these aspects determined. In other words on the aforesaid three issues, the original order of assessment dated 10 March 1999 passed under Section 143(3) continued to hold the field. Once that is the position, then clearly the doctrine of merger would not apply. The order under Section 143(3) passed on 10 March 1999 cannot stand merged with the orders of reassessment in respect of those issues which did not form the subject matter of the reassessment. Consequently Explanation 3 to Section 147 will not alter that position. Explanation 3 only enables the Assessing Officer, once an assessment is reopened, to assess or reassess the income in respect of any issue, even an issue in respect of which no reasons were indicated in the notice under Section 148(2). This, however, will not obviate the bar of limitation under Section 263(2). Where the jurisdiction under Section 263(1) is sought to be exercised with reference to an issue which is covered by the original
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order of assessment under Section 143(3) and which does not form the subject matter of the reassessment, as in the present case, limitation must necessarily begin to run from the order under Section 143(3). Before concluding we may also take notice of the fact that the second order of reassessment dated 26 March 2002 has been set aside by the Tribunal on 27 August 2010. An appeal against the order of the Tribunal is pending before this Court for admission. However, we have considered this appeal independently and have come to the conclusion that the invocation of the jurisdiction under Section 263 was barred by limitation. Accordingly we answer the question of law in the affirmative”
Similarly, Hon’ble Bombay High Court in another latest decision in the case of CIT vs. Lark Chemicals Ltd [2014] 368 ITR 655 (Bombay) has considered another decision of Hon’ble Bombay High Court in the case of CIT v. Anderson Marine & Sons (P.) Ltd. [2004] 266 ITR 694 and held as under:-
“12. We have considered the rival submissions. It is not disputed that save and except the issue of non-genuine purchases all other issues dealt with by the Commissioner of Income-tax in the order dated March 30, 2009, were not a subject matter of the assessment order passed on June 28, 2006, under section 143(3)/147 of the Act. All the other issues on which the Commissioner of Income-tax is seeking to exercise the jurisdiction under section 263 of the Act were concluded by virtue of an intimation under
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section 143(1) of the Act which admittedly was done beyond a period of two years prior to the notice dated March 17, 2009, issued under section 263 of the Act. Section 263(2) of the Act provides that no order would be made in exercise of the jurisdiction under section 263(1) of the Act after the expiry of two years from the end of the financial year in which the order sought to be revised was passed. It is an admitted position that the Commissioner of Income- tax has not exercised the revisional jurisdiction in respect of the order/intimation passed section 143(1) of the Act within two years of it being passed. Therefore, exercise of jurisdiction on those issues under section 263 of the Act is time barred as held by this court in CIT v. Anderson Marine & Sons (P.) Ltd. [2004] 266 ITR 694/139 Taxman 16. Moreover, in view of the decision of the apex court in the matter of Alagendran Finance Ltd.'s case (supra) as well as our court in the matter of Ashoka Buildcon Ltd.'s case (supra) the jurisdiction under section 263 of the Act cannot be exercised on issues which were not subject matter of consideration while passing the order of reassessment under section 143(3)/147 of the Act but a part of an assessment done earlier under the Act.
In the above view, we find no fault with the order of the Tribunal in allowing the respondent's appeal. The submission of Mr. Chandrapal, learned counsel for the Revenue, is that in the case of bogus bills and non-genuine purchases, i.e., where the State is being defrauded the limitation as provided under
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section 263 of the Act be ignored cannot be accepted. This is for the reason that neither the Tribunal nor we, in our appellate jurisdiction, can ignore the mandate of limitation provided under the Act. This is an issue which would fall within the domain of Parliament so as to make suitable amendment to the law after considering the various competing interests. So far as the submission of Mr. Chandrapal, learned counsel for the Revenue, with regard to the decision of the Supreme Court in Alagendran Finance Ltd.'s case (supra) and of this court Ashoka Buildcon Ltd.'s case (supra) being inapplicable merely on the ground that they do not deal with the issues of bogus bills or non-genuine purchases is in fact no distinction. The principle laid down in the aforesaid decisions is that a notice under section 263 of the Act cannot be issued beyond the period of two years from the date when the order sought to be revised is passed. The case law relied upon in the impugned order are clearly applicable to the present facts.”
In view of the above facts, case laws discussed above, we are of the considered view that in the present case as the original assessment was completed under section 143(3) of the Act vide order dated 30- 12.2011 for the assessment year 2009-10 and the issue of share application money and share premium received by assessee from the group companies of Pravin Kumar Jain was considered and during reassessment proceedings under section 143(3) read with section 147 of the Act, this issue was not at all the subject matter of reassessment proceedings and therefore the limitation for revision under section 263 of the Act in the present case will start from the original assessment order
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dated 30.12.2011. Hence, the revision order passed by PCIT dated 30.03.2017 is clearly barred by limitation as the same is passed based on reassessment order framed under section 143(3) r.w.s 147 of the Act 20.02.2015. Accordingly, we allow the jurisdictional issue raised by assessee.
As we have adjudicated the jurisdictional issue in favour of assessee, we need not adjudicate on merits.
In the result, the appeal of assessee is allowed.
Order pronounced in the open court on 25-05-2018. AadoSa kI GaaoYaNaa Kulao mao idnaMk 25.05.2018 kao kI ga[- .
Sd/- Sd/- (MANOJ KUMAR AGGARWAL) (MAHAVIR SINGH) ACCOUNTANT MEMBER JUDICIAL MEMBER Mumbai, Dated: 25-05-2018 Sudip Sarkar /Sr.PS Copy of the Order forwarded to: 1. The Appellant 2. The Respondent. 3. The CIT (A), Mumbai. 4. CIT 5. DR, ITAT, Mumbai 6. Guard file. //True Copy//
BY ORDER,
Assistant Registrar ITAT, MUMBAI